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AFA//7-43V- A2/Nb^ 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDERS 

PROPOSED RULES 

Certified Public Accountant Examiners 

Environment, Health, and Natural Resources 

Human Resources 

Pharmacy, Board of 

Practicing Psychologists Examiners 

Public Education 



FINAL RULES 

Correction 

Revenue 

Transportation 

List of Rules Codified 



WECOW® 



MAY 1? 

EAW LIBRARY 



ARRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

ISSUE DATE: MAY 15, 1991 
Volume 6 • Issue 4 • Pages 186-226 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published bi-monthly 
and contains information relating to agency, executive, 
legislative and judicial actions required by or affecting 
Chapter 150B of the General Statutes. All proposed, ad- 
ministrative rules and amendments filed under Chapter 
150B must be published in the Register. The Register 
will typically comprise approximately fifty pages per 
issue of legal text. 

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vided free of charge to each county in the state and to 
various state officials and institutions. The North Carolina 
Register is available by yearly subscription at a cost of 
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Requests for subscriptions to the North Carolina 
Register should be directed to the Office of Ad- 
ministrative Hearings, P. O. Drawer 27447, Raleigh, N. 
C. 27611-7447, Attn: Subscriptions. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

An agency intending to adopt, amend, or repeal a rule 
must first publish notice of the proposed action in the 
North Carolina Register. The notice must include the 
time and place of the public hearing; a statement of how 
public comments may be submitted to the agency either 
at the hearing or otherwise; the text of the proposed 
rule or amendment; a reference to the Statutory 
Authority for the action and the proposed effective date. 

The Director of the Office of Administrative Hearings 
has authority to publish a summary, rather than the 
full text, of any amendment which is considered to be 
too lengthy. In such case, the full text of the rule con- 
taining the proposed amendment will be available for 
public inspection at the Rules Division of the Office of 
Administrative Hearings and at the office of the pro- 
mulgating agency. 

Unless a specific statute provides otherwise, at least 
30 days must elapse following publication of the pro- 
posal in the North Carolina Register before the agency 
may conduct the required public hearing and take ac- 
tion on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency 
must file any adopted or amended rule for approval by 
the Administrative Rules Review Commission. Upon ap- 
proval of ARRC, the adopted or amended rule must be 
filed with the Office of Administrative Hearings. If it 
differs substantially from the proposed form published 
as part of the public notice, upon request by the agen- 
cy, the adopted version will again be published in the 
North Carolina Register. 

A rule, or amended rule cannot become effective 
earlier than the first day of the second calendar month 
after the adoption is filed with the Office of Ad- 
ministrative Hearings for publication in the NCAC. 

Proposed action on rules may be withdrawn by the 
promulgating agency at any time before final action is 
taken by the agency. 

TEMPORARY RULES 

Under certain conditions of an emergency nature, 
some agencies may issue temporary rules. A temporary 
rule becomes effective when adopted and remains in 



effect for the period specified in the rule or 180 day 
whichever is less. An agency adopting a temporary ru 
must begin normal rule-making procedures on the pe 
manent rule at the same time the temporary rule 
adopted. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) 
a compilation and index of the administrative rules 
25 state agencies and 38 occupational licensing boarc 
The NCAC comprises approximately 15,000 letter si; 
single spaced pages of material of which approxima 
ly 35% is changed annually. Compilation and public 
tion of the NCAC is mandated by G.S. 150B-63(b). 

The Code is divided into Titles and Chapters. Ea 
state agency is assigned a separate title which is fi 
ther broken down by chapters. Title 21 is designat 
for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimi 
cost of two dollars and 50 cents ($2.50) for 
pages or less, plus fifteen cents ($0.15) per ea 
additional page. 

(2) The full publication consists of 53 volum 
totaling in excess of 15,000 pages. It is si 
plemented monthly with replacement pages 
one year subscription to the full publication 
eluding supplements can be purchased 
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dividual volumes may also be purchased w 
supplement service. Renewal subscriptions 
supplements to the initial publication availal 

Requests for pages of rules or volumes of the NC 
should be directed to the Office of Administrat 
Hearings. 

NOTE 

The foregoing is a generalized statement of the p 
cedures to be followed. For specific statutory langua 
it is suggested that Articles 2 and 5 of Chapter 1501 
the General Statutes be examined carefully. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, iss 
page number and date. 1:1 NCR 101-201, April 1, l 1 
refers to Volume 1, Issue 1, pages 101 through 20 
the North Carolina Register issued on April 1, 194 



North Carolina Register. Published bi-monthly by th 
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Raleigh, North Carolina 27611-7447, pursuant 
Chapter 150B of the General Statutes. Subscription 
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North Carolina Administrative Code. Published i 
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Chapter 150B of the General Satutes. Subscription 
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volumes available. 



i 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




Office of Administrative Hearings 

P.O. Drawer 27447 

Raleigh, NC 2761 1-7447 

(919) 733-2678 



EXECUTIVE ORDERS 

Executive Orders 140-141 186 



II. PROPOSED RUUES 

Environment, Health, and 
Natural Resources 

Environmental Management 

Commission 197 

Wildlife Resources 

Commission 198 

Human Resources 

Medical Assistance 188 

Licensing Boards 
Certified Public Accountant 

Examiners 201 

Pharmacy, Board of 201 

Practicing Psychologists 

Examiners 203 

Public Education 
Elementary and Secondary 199 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



III. FINAL RULES 
Correction 

Division of Prisons 209 

Revenue 

Property Tax Commission 210 

Transportation 

Division of Motor Vehicles 213 

List of Rules Codified 215 

IV. ARRC OBJECTIONS 219 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 223 

VI. CUMULATIVE INDEX 225 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1991 - December 1992) 



Issue 


Last Dav 


Last Day 


Earliest 


* 


Date 


for 


for 


Date for 


I arliest 




Filing 


Electronic 


Public 


Effective 






Filing 


Hearing & 
Adoption by 
Agency 


Date 


******** 


******** 


******** 


******** 


******** 


04 01/91 


03/11 91 


03/18/91 


05,01 91 


08/01/91 


04 15 91 


03/22/91 


04/01/91 


05/15/91 


OS 01 91 


05/01 91 


04/10/91 


04/17/91 


05/31/91 


09 01 91 


05 15 91 


U4 24 9 1 


05/01/91 


06/14/91 


09 01/91 


06/03/91 


05/10/91 


05/17/91 


07/03/91 


10 01 91 


06 14 91 


05 23 9] 


05/31/91 


07/14/91 


10/01/91 


07/01/91 


06/10/91 


06/17,91 


07/31/91 


11/01/91 


07 15 91 


06 21 91 


06 28 91 


08 14 91 


11/01/91 


08.01/91 


07/11/91 


07/18/91 


08,31/91 


12/01,91 


08/15/91 


07/25/91 


08/01/91 


09/14 91 


12 01,91 


09 03 91 


08/12/91 


08/19/91 


10/03/91 


01 01 92 


09 16/91 


08/23/91 


08/30/91 


10/16/91 


01/01/92 


10/01/91 


09/10/91 


09/17/91 


10,31,91 


02 01 92 


10 15 91 


09/24 91 


10/01/91 


11/14/91 


02/01 92 


11/01/91 


10 11 91 


10/18/91 


12/01/91 


03 01/92 


11 15 91 


10 24 91 


10/31/91 


12 15 91 


03/01/92 


12 02 91 


■ 11 07-91 


11/14/91 


01/01/92 


04/01/92 


12/16 91 


11/21/91 


12/02/91 


01 15 92 


04 01 92 


01 02 92 


12 09 91 


12 16 91 


01/31/92 


05,01 92 


01 15/92 


12,20/91 


12/31/91 


02 14/92 


05 01/92 


02 03 92 


01 10 92 


01/17/92 


03 04 92 


06 0192 


02 14 92 


01 24 92 


01 '31 92 


03 15/92 


06/01/92 


03 02 92 


02/10 92 


02/17 92 


04/01/92 


07,01/92 


03 16 92 


02 24 92 


03 02 92 


04/15/92 


07 01 92 


04 01/92 


03 11/92 


03/18/92 


05 01 92 


08/01/92 


04. 15 92 


03/25 92 


04/01/92 


05/15/92 


08/01/92 


05 01, 92 


04 10 92 


04/17,92 


05 31 92 


09 01,92 


05 15 92 


04 24 92 


05 01 92 


06 14 92 


09 01 92 


06 01 92 


05 1 1 92 


05/18 92 


07/01/92 


10 01 92 


06 15 92 


05 25 92 


06.01 92 


07/15 92 


10 01.92 


07 01 92 


06 10 92 


06/17 92 


07 31 92 


11 01 92 


07 1 5 92 


06 '24 92 


07 01 92 


08/14/92 


11 01 92 


OS 03 92 


07/13/92 


07 20 92 


09 02 92 


12 01/92 


OS 14 92 


07 24 92 


07 31 92 


09 13 92 


12 01 92 


09 01 92 


08/11/92 


OS IS 92 


10 01 92 


01 01 93 


09 15 92 


OS 25 92 


09 01 92 


10 15 92 


01 01 93 


10 01 92 


09 10 92 


09 17 92 


10 31 92 


02 01 93 


10 15 92 


09 24 92 


10,01/92 


11/14/92 


02 01,93 


11 02 92 


10 12 92 


10 19 92 


12 02 92 


03 0193 


11 16 92 


10 23 92 


10/30/92 


12 16 92 


03 01 93 


12 01 92 


1 1 06 92 


11/13 92 


12 31 92 


04 01 93 


12 15 92 


11 24 92 


12,01,92 


01 14 93 


04 01,93 



* The "Earliest Effective Date" is computed assuming that the public hearing 
and adoption occur in the calendar month immediately following the "Issue 
Date", that the agency files the rule with The Administrative Rules Review 
Commission by the 20th of the same calendar month and that ARRC approves 
the rule at the next calendar month meeting. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 140 

APPOINTING SPECIAL COMMISSION 

TO INVESTIGATE SHORTAGES IN THE 

NORTHAMPTON COUNTY SCHOOLS' 

FINANCES 

The Northampton County Board of Commis- 
sioners has asked that I appoint a special com- 
mission to investigate shortages and the causes 
for the shortages in the Northampton County 
Schools' finances. Documents were submitted 
in support of the request which evidence that 
shortages totaling $484,185 were suffered during 
the 1988-89 and 1989-90 school years and that 
there have been various violations of the North 
Carolina School Finance Act. The request was 
made by the Northampton County Board be- 
cause it felt that the financial condition of the 
schools had deteriorated to the point that neither 
the Northampton Board of Education nor the 
Northampton County Board could cope with it. 

North Carolina General Statute §143-158 au- 
thorizes the Governor to appoint special com- 
missions to investigate State departments or 
institutions and submit their findings to him. 

Article IX, Sec. 5 of the Constitution vests the 
State Board of Education with the authority and 
responsibility for supervising and administering 
the State's free public school system and the ed- 
ucational funds provided by the State for its 
support. Northampton County Schools is a part 
of the free public school system and it and the 
funds provided for its support are subject to the 
supervision and administration of the State 
Board of Education. 

The State Auditor has the authority and re- 
sources to do much of the work that will be re- 
quired for the State Board of Education to make 
the investigation requested by the Northampton 
County Board. The State Board of Education 
has made known to me that it would be helpful 
to the State Board to have the benefit of the as- 
sistance of the State Auditor in carrying out the 
investigation. 

THEREFORE, as requested by the Northampton 
County Board of Commissioners and pursuant 
to Articles III, Sec. 1 and Article IX, Sec. 5 of the 
Constitution and North Carolina General Stat- 
utes §143-158, §143A-25 and §147-64.6(c)(3), it 
is ORDERED: 

Section 1: The State Board of Education is 
hereby designated a Special Commission to in- 
vestigate alleged shortages in the Northampton 



County School's finances and the causes for such 
shortages and report to me (i) the results of its 
findings and (ii) its recommendations for reme- 
dying whatever shortcomings found. 

Section ~h The State Auditor is hereby re- 
quested to assist the State Board of Education in 
its investigation by conducting a Special Investi- 
gation and Compliance Audit of the 
Northampton County Schools for such periods 
as are found to be indicated for the State Board 
of Education to discharge its responsibilities 
hereunder and to do all such other things as ap- 
pear to the State Auditor to be appropriate to 
that end and to report the results of the same to 
the State Board of Education. 

Section 3: The Attorney General, the Depart- 
ment of Justice, the State Treasurer, the Local 
Government Commission and all other agencies 
of the State called upon to do by the State Board 
of Education and/or the State Auditor, shall fur- 
nish assistance to the State Board and/or the 
State Auditor in conducting this investigation. 

Section 4^ This Executive Order shall be effec- 
tive immediately and shall remain in effect until 
terminated by me or my successor. 

Done in Raleigh, North Carolina, this 22nd day 
of April, 1991. 

EXECUTIVE ORDER NUMBER 141 

AMENDING EXECUTIVE ORDER NUMBER 90 

GOVERNOR'S ADVISORY COUNCIL ON 

LITERACY 

By the authority vested in me as Governor by 
the Constitution and laws of North Carolina, it 
is ORDERED: 

Executive Order Number 90, as amended by 
Executive Order Number 104, is hereby amended 
to add the following member to the Council: 

Section 2. Membership 

12. One representative of the Department of 
Human Resources working in early child 
development to be appointed by the 
Governor 

Executive Order Number 90 is hereby extended 
until May 18, 1993. 

This Executive Order shall become effective 
immediately. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



186 



EXECUTIVE ORDERS 



Done in Raleigh, this the 17th day of April, 
1991. 



187 6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



No 



' otice is hereby given in accordance with G.S. 
I SOB- 12 that the Department of Human 
Resources/ Division of Medical Assistance intends 
to amend rule(s) cited as 10 NCAC 26H .0101 - 
.0104 and .0106 - .0107. 



1 he proposed effective date of this 
September 1, 1991. 



action is 



1 he public hearing will be conducted at 1:30 
p.m. on June 14, 1991 at the North Carolina Di- 
vision of Medical Assistance, 1985 Umstead 
Drive, Room 201, Raleigh, North Carolina 27603. 

\_sOmment Procedures: Written comments con- 
cerning these amendments must be submitted by 
June 14, 1991, to: Division of Medical Assistance, 
1985 Umstead Drive, Raleigh, North Carolina 
27603, ATTN.: Bill Hottel, APA Coordinator. 
Oral comments may be presented at the hearing. 
In addition, a fiscal impact statement is available 
upon written request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PUANS 

SECTION .0100 - REIMBURSEMENT FOR 
NURSING FACILITY SERVICES 

.0101 REIMBURSEMENT PRINCIPLES 

Effective October +7 -WS4 a«4 eaeh October 4- 
thoreaftor all All certified Skilled Nuniing a«4 
Intermediate Care nursing facilities participating 
in the North Carolina Medicaid Program are re- 
imbursed on a prospective basis as set forth 
hereunder. Combination facilities containing 
both a SNF a«4 IGF- portion are treated a* two- 
separato facilitioo fe* Fate netting purposes. This 
plan is developed in accordance with the re- 
quirements of 42 CFR 447 Subpart C - Payment 
for Inpatient Hospital and Long-Term Care Fa- 
cility Services. Providers must comply with all 
federal regulations and with the provisions of this 
plan. 

Authority G.S. 108A-25(b); 108A-54: I08A-55; 
S.L. 1985, c. 479, s. 86; 42 C.T.R. 447, Subpart 
C. 

.0102 RATE SETTING METHODS 

(a) A rate for eaeh facility » skilled nursing care 
and a rate for intermediate nursing care are de- 
termined annually for each facility to be effective 
for dates of service for a twelve month period 



beginning each October 1 . Each patient will be 
classified in one of the two categories depending 
on the services needed. Rates are derived from 
either desk or field audited cost reports for a base 
year period to be selected by the state. Cost re- 
ports are filed and audited under provisions set 
forth in Rule .0104 of this Section. The criteria 
for deteiTnining the classification of each patient 
are presented in Appendix J_ of Attachment 3.1 -A" 
of the state plan. The minimum requirements 
of the 1987 OBRA are met by these provisions. 
(bj T4*e Each prospective rate consists of two 
components: a direct patient care rate and an in- 
direct rate computed and applied as follows: 

(1) The direct rate is based on the Medicaid 
cost per day incurred in the following cost 
centers: 

(A) Nursing, 

(B) Dietary or Food Service, 

(C) Laundry and Linen, 

(D) Housekeeping, 

(E) Patient Activities, 

(F) Social Services, 

(G) Ancillary Services (includes several cost 
centers). 

(2) To compute each facility's direct rate for 
skilled care and intermediate care, the di- 
rect base year cost per day is increased by 
adjustment factors for price changes as set 
forth in Rule .0102(c). A facility's direct 
rate cannot exceed the maximum rat e s set 
fef a SNF ef ICF. However, the Division 
»f Medical Assistance F»ay- negotiato d+- 
Feet rates that oxcood the maximum Fate 
fof ventilator dependent patients. Pay 
ment ef ouch sp e cial direct Fates shall he 
made only after specific prior approval »f 
the Division ef Medical Assistance 

(A) A facility's direct rates cannot exceed 
the maximum rates set for skilled nursing 
or intermediate nursing care. I lowever, 
the Division of Medical Assistance may 
negotiate direct rates that exceed the 
maximum rate for ventilator dependent 
patients. Payment of such special direct 
rates shall be made only alter specific prior 
approval of the Division of Medical As- 
sistance. 

(B) A standard per diem amount will be 
added to each facility's direct rate, includ- 
ing faculties that are limited to the maxi- 
mum rates, for the projected statewide 
average per diem costs of the salaries paid 
to replacement nurse aides for those aides 
in training and testing status and other 
costs deemed by IICFA to be facility 
costs related to nurse aide training and 
testing. The standard amount is based on 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



1SS 



PROPOSED RULES 



the product of multiplying the average 
hourly wage, benefits, and payroll taxes 
of replacement nurse aides by the number 
of statewide hours required for training 
and testing of all aides divided by the 
projected total patient days. 

(3) If a facility did not report anv costs for 
either skilled or intermediate nursing care 
in the base year, the state average direct 
rate will be assigned as determined in Rule 
.0102(d) of this Section for the new tvpe 
of care. 

(4) (-44 The direct maximum rates are devel- 

oped by ranking base-year per diem costs 
from the lowest to the highest in two 
separate arrays, one for SNFs skilled care 
and one for ICFs intermediate care. The 
per diem cost at the 80th percentile in 
each array is selected as the base for the 
maximum rate. The base cost in each 
array is adjusted for price changes as set 
forth in Rule .0102(c) of this Section to 
determine the maximum statewide direct 
rates for skilled care and intermediate care. 
Fate a* *et fottft » R»le .0102(c). 
(-44 Upon completion »f a»y e*s4 reporting 
yea? a»y funds received by a facility from 
the direct pati e nt eafe Fate which have Ftet 
boon spent eft direct patient rape coots as 
defin e d h e r e in afe repaid to the state. 

(5) Effective October J\ 1990. the direct rates 

will be adiusted as follows: T4*e indirect 
Fate fs intended te- cover the following 
costs e£ a» efficiently af*4 economically 
operated facility: 
(-A4 Administrativ e a»4 G e n e ral, 
(A) A standard per diem amount will be 
added to each facility s skilled and inter- 
mediate rate to account for the combined 
expected average additional costs for the 
continuing education of nurses aides: the 
residents assessments, plans of care, and 
charting of nursing hours for each patient: 
personal laundry and hvgiene items: and 
other non-nursing staffing requirements. 
The standard amount is equal to the sum 
of. 

(il the state average annual salary, bene- 
fits, and payroll taxes for one registered 
nurse position multiplied by the num- 
ber of facilities in the state and divided 
bv the state total of patient days: 
(in the total costs of personal laundry and 
hvgiene items divided bv the total pa- 
tient davs as determined from the FY 
19S9 cost reports of a sample of nursing 
facilities multiplied by the annual ad- 



iustment factors described in Rule 



.0102(c)(4)(B) of this Section: and 
(iii) the state average additional pharmacy 
consultant costs divided bv 365 days 
and then divided bv the average number 
of beds per facility. 
f&4 Operation ©I Plant aF>4 Maintenance, 

(B) A standard amount will be added to the 
intermediate rate of facilities that were 
certified only for intermediate care prior 
to October 1, 1990. This amount will be 
added to account for the additional cost 
of providing eight hours of RN coverage 
and 24 hours of licensed nursing coverage. 
Fhe standard amount is equal to the state 
average hourly wage, benefits and payroll 
taxes for a registered nurse multiplied bv 
the j_6 additional hours of required li- 
censed nursing staff divided bv the state 
average number of beds per nursing facil- 
ity. A lower amount will be added to a 
facility only if it can be determined that 
the facility's intermediate rate prior to 
October j\ 1990 already includes licensed 
nursing coverage above eight hours per 
day. The add-on amount in such case 
would be equal to the exact additional 
amount required to meet the licensed 
nursing requirements. 

f&4 Property Ownership a»4 Use, 

(C) The standard amounts in Subpara- 
graphs (2MB). (5)(A). and (5)(B) of this 
Rule, will be retained in the rates of sub- 
sequent years until the year that the rates 
are derived from the actual cost incurred 
in the cost reporting year ending in 1991 
which will reflect each facility's actual cost 
of complying with all OBRA '! 1_ require- 
ments. 

f©4 Mortgage Interest. 

(44 Effective fe* dates ef service beginning 
October 4r IQS ' 1 a«4 ending September 44+r 
1985 the indirect rates ape fourteen dollars 
a»4 sisty c e nts (SM.6Q) fof eaeh SNF day 
et ea*e as4 thirteen dollars a*t4 fiftv c e nts 
($13.50) feF eaeh 1€£ da* ef eafer ' These 
rates represent the ftfst step » a twe- step 
transition process from the different SNF 
a&4 iGf- indirect rates f>ai4 ift 1Q83 84 a«4 
the nearly equal indirect rat e s that wiH he 
pai4 » subsequent y e ars under this plan 
as provided ift th+s Rule. 

(6) Upon completion of anv cost reporting 
year any funds received by a facility from 
the direct patient care rates which have 
not been spent on direct patient care costs 
as defined herein are repaid to the State. 
This will be applied bv comparing a facil- 



189 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



itv's total Medicaid direct costs with the 
combined direct rate payments received 
for skilled and intermediate care. How- 
ever, any skilled and intermediate care 
Medicaid costs in excess of an amount 
equal to the skilled or intermediate maxi- 
mum rates established in Rule .0102(b)(4) 
of this Section multiplied by the facility's 
skilled or intermediate Medicaid days are 
not reimbursable and must be excluded 
from the calculation of a repayment 
amount. 
(7) Effective - fof datoo ©f service beginning Qe- 
tobor 47 1985 a«4 annually thereafter pe? 
diom indirect rat e s wiH be computed as 
follows: The indirect rate is intended to 
cover the following costs of an efficiently 
and economically operated facility: 
(A) Administrative and General, 

(A) 44*e average indirect payment to aH fo- 
cilitieo » tke fiscal yeap ending September 

^J\77 I - \~J ~t I f 1 II IT_TI I rj TTTTTT^^rT U V 7 1 1 T.X I J EQ RE I TT \_f 

Or? lit** ^J^iJj.'*X-.M tV 1 U rrr? rrrt? rrrt^iT? rrtTryr 

/ IJ \ I l.i 1^t£^» r-^ii^x null 1^^ fi.lin.'t. Lit Tfir ^t_t^^ 

^^L^^f ^^^^^v ^^^^^^7 !^^^^^7 ^^^^^T ^^^7 c^^^^T^^^^^^j ^^^T ^^^^^^ 

mated price level changes from fiscal yea? 
1983 through &<* yea? i» which tbe ratoo 
will apply » accordanc e with the proco 
dure set- forth i» Rul e .0102(c) b e low to 
establish tl+e ICF pep diem indir e ct rate. 

it \ _^*.a^ I L * I P I **" 1 I * I fcflfij »«^, I'T i f it' l *"' ' * I ' t "' P • ' 1 1 r ) ■ \ 

^^^^^ ^^^^^C ^^^^^^^ T^^^T ^^^^^^^T TT^^^^T^^^T 1 Cnv r^r^tTTT 1^^ 

multiplied by a factor »f 4-rQ3 to ootabhoh 
Ae SNF pef diem indirect rat e . This ad- 
juotmont is made to recognize the addi 
tional administrative expense incurred » 
tfe* provision ef SNF patient care. 

(B) Operation of Plant and Maintenance, 

(C) Property Ownership and Use, 

(D) Mortgage Interest. 

(8) Effective for dates of service beginning 
October 1, 1984 and ending September 30, 
19S5 the indirect rates are fourteen dollars 
and sixty cents ($14. Ml) for each SNF day 
of care and thirteen dollars and fifty cents 
($13.50) for each ICF day of care. These 
rates represent the first step in a two step 
transition process from the different SNF 
and ICF indirect rates paid in 1983-84 and 
the nearly equal indirect rates that will be 
paid in subsequent years under this plan 
as provided in this Rule. 

(9) Effective for dates of service beginning 
October _L, 1985 and annually thereafter 
per diem indirect rates will be computed 
as follows: 

(A) The average indirect payment to all fa- 
cilities in the fiscal year ending September 
30, 1983 I which is thirteen dollars and two 
cents (S 1 3.02)1 will be the base rate. 



(B) The base rate will be adjusted for esti- 
mated price level changes from fiscal year 
1983 through the year in which the rates 
will apply in accordance with the proce- 
dure set forth in Rule .0102(c) of this 
Section to establish the ICF per diem in- 
direct rate. 



(C) The ICF per diem indirect rate shall be 
multiplied by a factor of 1.02 to establish 
the SNF per diem indirect rate. This ad- 
justment is made to recognize the addi- 
tional administrative expense incurred in 
the provision of S N F patient care. 

(10) Effective for dates of service beginning 
October J^ 1989, a standard per diem 
amount will be added to provide for the 
additional administrative costs of prepar- 
ing for and complying with all nursing 
home reform requirements. The standard 
amount is based on the average annual 
salary, benefits and payroll taxes of one 
clerical position multiplied by the number 
of facilities m the state divided by the state 
total of patient days. 

(11) Effective for dates of service beginning 
October L 1990, the indirect rate will be 
standard for skilled and intermediate care 
for all facilities and will be determined by 
applying the 1990-91 indirect cost adjust- 
ment factors in Rule .0102(c) of this Sec- 
tion to the indirect rate paid for SNF 



(c) 
level 



during the year beginning October l^ 
1989. Thereafter the indirect rate will be 
adjusted annually by the indirect cost ad- 
justment factors. 
Adjustment factors for changes in the price 
The rate bases established in Rule 
.0102(b), are adjusted annually to reflect increases 
or decreases in prices that are expected to occur 
from the base year to the year in which the rate 
applies. The price level adjustment factors are 
computed using aggregate base year costs in the 
following manner: 

( 1 ) Indirect eos* and- direct costs wiH- be sopa 

rated i«to twe catogorios. Costs will be 
separated into direct and indirect cost cat- 
egories. 

(2) Costs in each category will be accumulated 
into the following groups: 

(A) labor, 

(B) other, 

(C) fixed. 

(3) 34w» percent »f costs within eaek category 

(ICF' &f S N F ) m each group will be as- 
certained to toe second decimal point. 
This percent shall become toe "weight" 
fe* each group e4 costs within each cate 
go p . '. The relative weight of each cost 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



190 



PROPOSED RULES 



group is calculated to the second decimal 
point by dividing the total costs of each 
group (labor, other, and fixed) by the total 
costs for each category (direct and indi- 
rect). 
(4) Price adjustment factors for each cost 
group will be established using official es- 
timates ef- price * level changes supplied by- 
the North Carolina Office ©£ Budg e t em4 
Management »» earlier than 4r2Q days 
prior te- the date »» which the Hew- re- 
imbursement rates shall ge ifite- eff e ct . 
Thooo factors shall include: as follows: 

(A) Labor. The expected annual percent- 
age change in North Carolina service 
wages modified fo* any special factors fe- 
lating te- nursing homes that &a» be e#- 
plicitly identified, direct labor costs as 
determined from a survey of nursing fa- 
cilities to determine the average hourly 
wages for RNs, LPNs, and aides paid in 
the current year and projected for the rate 
year. The percentage change for indirect 
labor costs is based on the projected av- 
erage hourly wage of N.C. service work- 
ers. 

(B) Other. The expected annual change in 
the implicit price deflator for the Gross 
National Product as provided by the 
North Carol ma Office of State Budget and 
Management. 



(C) Fixed. No adjustment will be made for 
this category', thus making the factor zero. 

(D) The weights computed in (c)(3) of this 
Rule shall be multiplied times the factors 
computed in (c)(4) of this Rule. These 
products shall be added separately in each 
category. 

(E) The sum computed for each category 
in (c)(4)(D) of this Rule shall be the price 
level adjustment factor for that category 
of rates (direct or indirect) for the coming 
fiscal year. 

f+4 The adjustment factor computed ift 
(c)(4)(B) ef th+s R*4e si»H be multiplied 
times the product e£ aH preceding annual 
price level adjustment factors computed 
since the base y e ar. This becomes the 
composit e factor by- which the bas e rates 
ate adjust e d t© produce the direct an4 m- 
dir e ot rat e s that wtll- apply » the Rest 6s- 

(4} Fef new- facilities enrolled e» ©f after Oe- 
tober 4t 4^X4 the direct patient eafe Brie is estab 
lished at the average ©f- industry base yea* costs 
t©f the appropriate level ©f- ease aftd is adjusted 
fof pric e chang e s as set forth m Rule .0102(c). 
A- Hew- facility receives tbe indirect fate ift effect 



at the tiffte the facility is enrolled m the ^- 
Program. to- the e vent ©f a chango ef- < 
the new- owner r e c e ives the same fate ©£ payment 
assignod t© the previous owner. 

(d) The skilled and intermediate direct patient 
care rates for new facilities are established at the 
lower of the projected costs in the provider's 
Certificate of Need application inflated to the 
current rate period or the average of industry base 
year costs and adjusted for price changes as set 
forth in Rule .0102(c) of this Section. A new 
facility receives the indirect rate in effect at the 
time the facility is enrolled in the Medicaid pro- 



gram^ In the event of a change of ownership, the 
new owner receives the same rate of payment 
assigned to the previous owner. 

(e) Each out-of-state provider is reimbursed at 
the lower of the appropriate North Carolina 
maximum rate or the provider's payment rate as 
established by the State in which the provider is 
located. Eor patients with special needs who 
must be placed in specialized out-of-state facili- 
ties, a payment rate that exceeds the North 
Carolina maximum rate may be negotiated. 
(£} Rates: 
( 1 ) A single all-inclusive prospective per diem 
rate combining both the direct and indi- 
rect cost components can be negotiated 
for nursing facilities that specialize in pro- 
viding intensive services for head-injured 
or ventilator-dependent patients. 1 he rate 
may exceed the maximum rate applicable 
to other Nursing Facility services. For 
head-injury services, a facility must spe- 



cialize to the extent of staffing at least 50 
percent of its Nursing Facility licensed 
beds for head-injurv services. The facility 
must also be accredited by the Commis- 
sion for the Accreditation of Rehabili- 
tation Facilities (CARF). For ventilator 
services, the only facilities that are eligible 
for a combined single rate are small 
freestanding facilities with less than 21 
Nursing Facility beds and that serve only 
patients requiring ventilator services. 
Ventilator services provided in larger fa- 
cilities are reimbursed at higher direct rates 
as described in Rule .0102(b)(2)(A) of this 
Section. 
(2) A facility's initial rate is negotiated based 
on budget projections of revenues, allow- 
able costs, patient days, staffing and 
wages. A complete description of the fa- 
cility's medical program must also be 
provided. Rates in subsequent years are 
determined by applying the average an- 
nual skilled nursing care adjustment 1 ac- 
tors to the rate in the previous year, unless 



191 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



either the provider or the State requests a 
renegotiation of the rate. 
(3) Cost reports for these services must be 
filed in accordance with the rules in .0104 
of this Section, but there will be no cost 
settlements for any differences between 
costs and payments. Since it is appropri- 
ate to include all financial considerations 
in the negotiation of a rate, a provider will 
not be eligible to receive separate pay- 
ments for return on equity as defined in 
Rule .0105 of this Section. 

Authority G.S. !08A-25(b); I08A-54; 108A-55; 
S. L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

.0103 REASONABLE AND NON-ALLOWABLE 
COSTS 

(a) Providers have an affirmative responsibility 
to operate economically and efficiently so that 
their costs are reasonable. Providers are required 
to provide sendees at the lowest possible costs in 
compliance with Federal and State laws, regu- 
lations for licensing and certification, and stand- 
ards for quality of care and patients' safety. 
Providers are also responsible for the financial 
actions of their agents (e.g., management com- 
panies) in this regard. 

(b) The state may publish guidelines to define 
reasonable costs in certain areas after careful 
study of industry-wide cost conditions. 

(c) The following costs are considered non- 
allowable facility costs because they are not re- 
lated to patient care or are specifically disallowed 
under the North Carolina State Plan: 

(1) bad debts; 

(2) advertising-except personnel want ads, 
and one line yellow page (indicating facil- 
ity address); 

(3) life insurance (except for employee group 
plans); 

(4) interest paid to a related party; 

(5) contributions, including political or 
church-related, charity and courtesy al- 
lowances; 

(6) prescription drugs and insulin (available 
to recipients under State Medicaid Drug 
Program); 

(7) vending machine expenses; 

(8) b arbor a«4 beauty chop expenses; personal 
grooming other than haircuts, 
shampooing and nail trimming performed 
by facility staff; 

(9) state or federal corporate income taxes, 
plus any penalties and interest; 

(10) telephone, ef television, or radio for per- 
sonal use of patient; 



(11) penalties or interest on income taxes; 

(12) dental expenses— except for consultant 
fees as required by law; 

(13) personal income taxes, plus any penalties 
and interest; 

(14) farm equipment and other expenses; 

(15) retainers, unless itemized services of equal 
value have been rendered; 

(16) physicians fees for other than utilization 
review or medical directors or medical 
consultants as required by law; 

(17) country club dues; 

(18) sitter services or private duty nurses; 

(19) fines or penalties for violations; capital 
expenditures subject te> oithor ooction 1 122 
e* cortificato ©f nood royiow Ret- receiving 
prior approval by t«e appropriate) stato 
agency; 

(30) conversions, leases, a«4 management 
agreements Ret roviowod by- the appropri 
ate otato agoncy; 

(444 (20) guest meals; 

(33) (21 ) morgue boxes; 

(34) (22) leave days- -except therapeutic leave; 
(34} (23) personal it e ms as4 clothing; 

laundering ef personal clothing; a«4 

(35) asy other it e ms which, und e r t«e given 
circumstances, are consider e d te be non 
allowable. 

(24) any costs in excess of the maximum rates 
established in Rule .0102(b)(4) of this 
Section and costs in excess of a facility's 
total prospective rate payments; 

(25) costs that are billable to Medicare. 

(d) For those non-allowable expenses which 
generate income, such as prescription drugs, 
vending machines, barber and beauty shop, etc., 
expense should be identified as a non- 
reimbursable cost center, where determinable. 
If the provider cannot determine the proper 
amount of expense which is to be identified, then 
the income which was generated must be offset 
in full to the appropriate cost center. 

Authoritv G.S. 108A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

.0104 COST REPORTING: AUDITING AND 
SETTLEMENTS 

(a) Each facility that receives payments from 
the North Carolina Medicaid Program must 
prepare and submit a report of its costs and other 
financial information requested by- th# stat e (• 
such as the working trial balance ) related to re- 
imbursement annually. The report must include 
costs from the fiscal period beginning on October 
1 and ending on September 30 and must be sub- 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



192 



PROPOSED RULES 



mitted to the state on or before the December 31 
that immediately follows the September 30 year 
end. A new provider must submit a report for 
the period beginning with the date of certification 
and ending on September 30. Facilities that fail 
to file their cost reports bv the due date are sub- 
iect to payment suspension until the reports are 
filed. The Division of Medical Assistance may 
extend the deadline 30 days for filing the report 
if, in its view, good cause exists for the delay. 

(b) Cost report format. The cost report must 
be submitted on forms and in a format and me- 
dium approved by the Division of Medical As- 
sistance. The account structure for the report is 
based on the chart of accounts published by the 
American Healthcare Association in 1979 but 
amended or modified to the extent necessary to 
meet the special reimbursement requirements of 
this plan. The Division of Medical Assistance 
will make one copy of the cost report format 
available to each facility (combination facilities 
receive only one) on or before July 1 of the re- 
porting year for which the report is to be filed. 

(c) Cost finding and allocation. Costs must 
be reported in the cost report in accordance with 
the following rules and in the order of priority 
stated. 

(1) Costs must be reported in accordance 
with the specific provisions of this plan as 
set forth in this Rule. 

(2) Costs must be reported in conformance 
to- Titl e XVIII principles e+ reimburse 
m e nt. with the Medicare Provider Re- 



imbursement Manual, HCFA 15. 



(3) 



(d) 



Costs must be reported in conformance 
with Generally Accepted Accounting 
Principles. 

The specific cost reporting guidelines re- 
lated to this plan are set forth in the following 
Paragraphs. The state will publish guidelines, 
consistent with the provisions of this plan, con- 
cerning the proper accounting treatment for 
items described in this Rule as related operating 
expenses. Those guidelines wtM- be tssaed prior 
to April 4t 1985. The guidelines may be sub so 
quontly modified prior to the beginning of each 
cost reporting period. In no case, however, shall 
any modifications be applied retroactively. A 
provider should request clarification in writing 
from the state if there is uncertainty about the 
proper cost center classification of any particular 
expense item. 

(1) Nursing Cost Center includes the cost of 
nursing staff, medical supplies, and related 
operating expenses needed to provide 
nursing care to patients, including medical 
records (including forms), utilization re- 
view, the Medical Director and the Phar- 



macy Consultant. Also, toe eesi (rontal 
»f purchaoo) »f special equipment toa* is 
medically required to sustain life »ay be 
charged to to» ©est center. Such equip 
m e nt shall include o xygon concentrators, 
respirators a«4 ventilators. The amount 
of nursing time provided to each patient 
must be recorded in order to allocate 
nursing cost between skilled and interme- 
diate nursing care. 

(2) Dietary Cost Center includes the cost of 
staff, raw food, and supplies needed to 
prepare and deliver food to patients. 

(3) Laundry and Linen Cost Center includes 
the cost of staff, bed linens (replacement 
mattresses and related operating expenses 
needed to launder facility-provided items). 

(4) Housekeeping Cost Center includes the 
cost of staff and supplies needed to keep 
the facility clean. 

(5) Patient Activities Cost Center includes 
the cost of staff, supplies, and related op- 
erating expenses needed to provide ap- 
propriate diversionary activities for 
patients. 

(6) Social Services includes the cost of social 
workers and related operating expenses 
needed to provide necessary social services 
to patients. 

(7) Ancillary Cost Center includes the cost 
of all therapy services covered by the 
Medicaid program and billable medical 
supplies. Providers must bill Medicare 
Part B 'for those ancillary services covered 
under the Medicare B program. Ancillary 
cost centers include: Radiology, Labora- 
tory, Physical Therapy, Occupational 

Therapy, Speech Therapy. Oxygen Ther- 
apy, Intravenous fluids. Billable Medical 
Supplies, Parenteral Enteral Therapy and 
life sustaining equipment, such as oxygen 
concentrators, respirators, and ventilators 
and other specifically approved equip- 
ment. 

(8) Administrative and General Cost Center 
includes all costs needed to administer the 
facility including the staff costs for the 
administrator, assistants, billing and sec- 
retarial personnel, personnel director and 
pastoral expenses. It includes the costs 
of copy machines, dues and subscriptions, 
transportation, income taxes, legal and 
accounting fees, start-up, and a variety of 
other administrative costs as set forth in 
the Chart of Accounts. Interest expense 
other than that stemming from mortgages 
or loans to acquire physical plant items 
should be reported here. 



193 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



(9) Property Ownership and Use: 

(A) This cost center includes all allowable 
costs related to the acquisition and/or use 
of the physical assets including building, 
fixed equipment and movable equipment, 
that are required to deliver patient care, 
except the special equipment, as specified 
in .0104(d)(1) of this Rule that may be 
charged to the nursing life-sustaining 
equipment cost center. Specifically it in- 
cludes the following items: 

(i) all equipment expense regardless of 
equipment nature, 

(ii) lease expense for all physical assets, 

(iii) depreciation of assets utilizing the 
straight line method, 

(iv) interest expense of asset related li- 
abilities, (e.g., mortgage expense), 

(v) property taxes. 

(B) For the purposes of computing allow- 
able lease expense and for balance sheet 
presentation for Return on Equity com- 
putations (see Rule .0105), leases shall not 
be capitalized. 

(C) In establishing the allowable cost for 
depreciation and for interest on capital 
indebtedness, with respect to an asset 
which has undergone a change of owner- 
ship, the valuation of the asset shall be the 
lesser of allowable acquisition cost less 
accumulated depreciation to the first 
owner of record on or after July 18, 1984 
or the acquisition cost to the new owner. 
Depreciation recapture will not be per- 
formed at sale. The method for estab- 
lishing the allowable related capital 
indebtedness shall be as follows: 

(i) The allowable asset value shall be di- 
vided by the actual acquisition cost. 

(ii) The product computed in step 1 shall 
be multiplied times the value of any re- 
lated capital indebtedness. 

(iii) The result shall be the liability 
amount upon which interest may be 
recorded at the rate set forth in the debt 
instrument or such lower rate as the 
state may prove is reasonable. 
The allowable asset and liability values 
established through the process in this 
Rule shall be those used in balance 
sheet presentations for return on equity 
computation (see Rule .0105). These 
procedures are established to implement 
the provisions of PL 98-369 Section 
2314. 
(10) Operation of Plant and Maintenance 

Cost Center includes all costs necessary to 

operate or maintain the functionality and 



appearance of the plant. These include: 
maintenance staff, utilities, repairs and 
maintenance to all equipment. 

(11) Equipment Expense. Equipment is de- 
fined as an item with a useful life of more 
than two years and a value greater than 
twe five hundred dollars ($200.00). 
($500.00). Equipment ownership and use 
costs shall be reported in the Property 
Ownership and Use Cost Center. Equip- 
ment maintenance and repair costs shall 
be reported in the Operation of Plant and 
Maintenance Cost Center. Equipment 
should not be reported elsewhere. 

(12) Training Expense. Training expense 
shall be allocated to must be identified in 
the appropriate benefiting cost center. 
centers. Adoquato rocordo t» support the 
allocation shall be maintained aft4 pfe- 
sented upon r e quest te establish 
allowability. The costs of training nurse 
aiiio must be identified separately and 
may include the cost of purchasing pro- 
grams and equipment that have been ap- 
proved bv the State for training or testing. 

(13) Home Office Costs. Home office costs 
are generally charged to the Administra- 
tive and General Cost Centers. In some 
cases, however, certain personnel costs 
which are direct patient care oriented may 
be allocated to "direct" patient care cost 
centers if time records are maintained to 
document the performance of direct pa- 
tient care services. No Home office over- 
head may be so allocated. The basis of 
this allocation among facilities participat- 
ing in the North Carolina Medicaid pro- 
gram may be: 

(A) specific time records of work performed 
at each facility, or 

(B) patient days in each facility to which the 
costs apply relative to the total patient 
days in all the facilities to which the costs 
apply. 

(14) Management Fees. Management fees are 
charged to the Administrative and General 
Cost Center. In some cases, however, a 
portion of a management fee may be al- 
located to a direct patient care cost center 
if time records are -maintained to docu- 
ment the performance of direct patient 
care services. The amount so allocated 
may be equal only to the salary and fringe 
benefits of persons who are performing 
direct patient care services while employed 
by the management company. Adequate 
records to support these costs must be 
made available to staff of the Division of 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



194 



PROPOSED RULES 



Medical Assistance to support these costs. 
The basis of this allocation among facili- 
ties participating in the North Carolina 
Medicaid program may be: 

(A) specific time records of work performed 
at each facility, or 

(B) patient days in each facility to which the 
costs apply relative to the total patient 
days in all the facilities to which the costs 
apply. 

(15) Related Organization Costs. Allowable 
costs of related organizations are to be 



(a) Providers may request a reconsideration 
review of thoir Fate agency reimbursement deter- 
minations. Those r e consideration roviowo wiU 
be processed according to procedures set- forth m 
■W NCAC 26 K. A provider may request a re- 
consideration review within 30 calendar days 
from receipt of final notification of payment, 
payment denial, disallowances, payment adjust- 
ments, notice of program reimbursement and 
adiustments and within 60 calendar days from 
receipt of notice of an institutional reimburse- 
ment rate, following the review the agency will 

identified in accordance with the direct render a decision in writing which will be sent by 

and indirect cost center categories. The certified mail. If the provider disagrees with the 

intent is to treat the costs incurred bv the 

related organization as if they were in- 



curred bv the provider itself Related or- 
ganization's costs applicable to direct cost 
centers ( Nursing. Dietary, faundrv and 
I men. Housekeeping. Social Services, 
Patient Activities, and Ancillary Services) 



must be identified in the applicable direct 
cost center. Related organization's costs 
applicable to indirect cost centers ( Prop- 
erty. Ownership and l"se, Operation and 
Maintenance of Plant, and Administrative 
and General) must be identified in the 
applicable indirect cost center. Adequate 
records to support these costs must be 
made available to staff of the Division of 
Medical Assistance and its designated 
contract auditors. 



(e) 

ports 



Auditing and Settlement. Ail filed cost re- 
must be desk audited and interim re- 
imbursement settlements made in accordance 
with the provision of this plan. This settlement 
is issued within ISO days of the date the cost re- 
port was filed or within ISO days of December 
31 of the fiscal year to which the report applies, 
whichever is later. The state may elect to per- 
form field audits on any filed cost reports within 
three years of the date of filing and issue a final 
settlement on a time schedule that conforms to 
Federal law and regulation. If the state decides 
not to field audit a facility a final reimbursement 
notice may be issued based on the desk audited 
settlement. The state may reopen and field audit 
any cost report after the final settlement notice 
to comply with Federal law and regulation or to 
enforce laws and regulations prohibiting abuse 
of the Medicaid Program and particularly the 
provisions of this reimbursement plan. 

Authority G.S. l08A-25(b); 10SA-54; 10SA-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

.0106 APPEALS 



reconsideration review decision, the provider may 
request a contested case hearing with the N. C. 
Office of Administrative Hearings. 

(b) Indirect rates shall not be adjusted on Fe- 
considoration revi e w, appeal. 

(c) A direct rate may be adjusted on reconsid 
oration review appeal if the a provider can estab- 
lish to the satisfaction of the state agency that 
such an adjustment is necessary to protect the 
health and safety of its patients and to sustain its 
financial viability. A facility is considered to be 
financially viable, and therefore not eligible for a 
rate adjustment, if its total Medicaid rate pay- 
ments and return on equity exceeded its total 
Medicaid cost as reported in the most recent cost 
report available. Providers are expected to utilize 
all available funds to provide the services that 
their patients need. Once a provider has reported 
a loss for a certain year, a direct rate of adjust- 
ment can then be negotiated for the following 
year at a level no greater than what is absolutely 
necessary for patient care and for the financial 
viability of the facility. The adjusted rate cannot 
exceed the applicable maximum direct rate as es- 
tablished by Rule .0102(b)(3). 

(d) Direct rates may also be adjusted tor 
without regard to the provisions of Rule .0106(c) 
of this Section for the following reasons: 

(1) to correct erroneous data in the rate base; 

(2) to accommodate any changes in the lovolo 

Bf prices minimum standards or minimum 
levels of resources required in the pro- 
vision of patient care that are mandated 
by state or federal laws or regulation; 

(3) to maintain services at levels commensurate 

with any rate adjustments that are allowed 
between the base year and the year in 
which the rates derived from that base 
year are first effective. 

(e) Adjustments to reimbursement settlements 
shall be made on the basis of the reimbursement 
principles set forth in this plan or incorporated 
here by reference [See Rule .0104(e)). 



195 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



Authority G.S. 108A-25(b); 108A-54; 108A-55; 
150B-11; S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, 
Subpart C. 

.0107 PAYMENT ASSURANCE 

(a) The state will pay each provider of nursing 
care services, who furnishes the services in ac- 
cordance with the requirements of the State Plan 
and the participation agreement, the amount de- 
termined under the plan. In addition, Skillod 
Nursing Faculties must be enrolled in the Title 
XVIII Program. 

(b) In no case shall the payment rate for ser- 
vices provided under the plan exceed the facility's 
customary charges to the general public for such 
services. 

(c) The payment methods and standards set 
forth herein are designed to enlist the partic- 
ipation of any provider who operates a facility 
both economically and efficiently. Participation 
in the program shall be limited to providers of 
service who accept, as payment in full, the 
amounts paid in accordance with the State Plan. 
This reimbursement plan is effective consistent 
with and on approval of the State Plan for Med- 
ical Assistance. 

(d) In all circumstances involving third party 
payment, Medicaid is the payor of last resort. 
No payment will be made for a Medicaid recipi- 
ent who is also eligible for Medicare, Part A, for 
the first 20 days of care rendered to skilled nurs- 
ing patients. Medicaid payments for co- 
insurance for such patients will be made for the 
subsequent 21st through the 100th day of care. 
In the case of ancillary services providers are ob- 
ligated to: 

(1) maintain detailed records or charges for 
all patients; 

(2) bill the appropriate Medicare Part B car- 
rier for all services provided to Medicaid 
patients that may be covered under that 
program; af*4 

(3) allocate an appropriate amount of ancil- 
lary costs, based on these charge records 
adjusted to reflect Medicare denials of 
coverage, to Medicare Part B in the an- 
nual cost report; and 

(4) failure to properly bill Medicare or other 
third-party payors will result in the disal- 
lowance of anv related cost claimed as 
Medicaid cost. 



(e) The state may withhold payments to pro- 
viders under the following circumstances: 

(1) If the state has a reasonable expection that 
the provider will not expend its direct rate 
for reasonable and allowable direct patient 
care costs, the state may, at its discretion, 
withhold a portion of each payment so as 



to avoid a large amount due back to the 
state upon reimbursement settlement 
pursuant to the provision of Paragraph 
.0104(e) of this Section. 

(2) Upon provider termination the state may 
withhold a sum of money from provider 
payments that it reasonably expects will 
be due when final reimbursement settle- 
ments for all previous periods, including 
the period in which the termination oc- 
curred, are completed. 

(3) Upon determination of any sum due the 
Medicaid Program or upon instruction 
from a legally authorized agent of the 
State or Federal Government the state 
may withhold sums to meet the obli- 
gations identified. 

(4) The state may arrange repayment sched- 
ules within the limits set forth in federal 
regulations in lieu of withholding funds. 

(5) The state may charge reasonable interest 
or overpayments from the date that the 
overpayment occurred. 

(6) The State may withhold 20 percent per 
month of a provider's payment for failure 
to file a timely cost report. These funds 
will be released to the provider after a cost 
report is acceptably filed. The provider 
will experience delayed payment while the 
check is routed to the State and split for 
the 20 percent withholding. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

****************** 



lyotice is hereby given in accordance with G.S. 
I50B-12 that the Department of Human 
Resources! Division of Medical Assistance intends 
to amend rule(s) cited as 10 NCAC 50B .0204. 

1 he proposed effective date of this action is 
September 1, 1991. 

1 he public hearing will be conducted at 1:30 
p.m. on May 31, 1991 at the North Carolina Di- 
vision of Medical Assistance, 1985 Umstead 
Drive, Room 201, Raleigh, N.C. 27603. 

V^omment Procedures: Written comments con- 
cerning this amendment must be submitted by 
May 31, 1991, to: Division of Medical Assistance, 
1985 Umstead Drive, Raleigh, North Carolina 
27603, ATTN.: Bill Hottel, APA Coordinator. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



196 



PROPOSED RULES 



Oral comments may be presented at the hearing. 
In addition, a fiscal impact statement is available 
upon written request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER SOB - ELIGIBILITY 
DETERMINATION 

SECTION .0200 - APPLICATION PROCESS 



.0204 

(a) 
lows: 

(1) 
(2) 



(3) 



(4) 



EFFECTIVE DATE OF ASSISTANCE 

Medicaid coverage shall be effective as fol- 

The month of application; or 

As much as three months prior to the 
month of application when the client re- 
ceived medical services covered by the 
program and was eligible during the 
month or months of medical need; or 

If the client applies prior to meeting a 
non-financial requirement, Medicaid shall 
begin no earlier than the calendar month 
in which all non-financial requirements 
are met; or 

For pregnancy related services under 
M-PW, the fe* month following the 
month ef application m which countable 
incomo » equal t& t*p lew than the income 
standard. month of application or as 
much as three months prior to the month 
of application in which all eligibility re- 
quirements are met in the month or 
months. 



Authority G.S. 10SA-54; 42 C.F.R. 435.914; 42 
C.F.R. 435.919. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 



iV otice is hereby given in accordance with G.S. 
I50B-I2 that the Environmental Management 
Commission intends to amend rule cited as I5A 
NCAC 2B .0309. 

1 he proposed effective date of this action is 
January I, 1992. 

1 he public hearing will be conducted at 7:00 
p.m. on July 23, 1991 at the Auditorium, 
Montgomery Community College, Old Biscoe 
Road, Troy, North Carolina. 



Cc 



statements, data and other information may be 
submitted in writing prior to, during or within 30 
days after the hearing or may be presented orally 
at the hearing. Oral statements may be limited 
at the discretion of the hearing officer. Submittal 
of written copies of oral statements is encouraged. 
For more information contact Suzanne H. Keen, 
Division of Environmental Management, P.O. Box 
29535, Raleigh, NC 27626-0535, (919) 

733-5083. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSIFICATIONS 

.0309 YADKIN-PEE DEE RIVER BASIN 

(c) The Yadkin- Pee Dee River Basin Schedule 
of Classifications and Water Quality Standards 
was amended effective: 
(1) February 12, 1979; 

March 1, 1983; 

August 1, 1985; 

February 1, 1986; 

October 1, 1988; 

March 1, 1989; 

January 1, 1990; 

August 1, 1990; 

January 1, 1992. 



(2) 
(3) 
(4) 
(5) 
(6) 
(7) 
(8) 

121 

(2) 



The Schedule of Classifications and Water 



Quality Standards for the Yadkin- Pee Dee River 
Basin was amended effective January 1^ 1992 as 
follows 

little River (Index Nos. 13-25-(10) and 
13-25-( 19)| from Suggs Creek to Densons 
Peek was reclassified from Classes 
WS-III and C to Classes WS-III HQW 
and C HOW. 

Densons Creek |Index No. 13-25-20-(l)l 
from its source to Troy's Water Supply 
Intake including all tributaries was reclas- 
sified from Class WS-III to Class WS-III 
HOW, 

Brtdgers Creek (Index No. 13-25-24) from 
its source to the little River was reclassi- 



ill 



Ql 



Ql 



lied from Class C to Class C HQW. 



Statutory Authority G.S. 143-214. 1; 143-215. 1; 
143-215.3(a)(l). 



****************** 



omment Procedures: All persons interested in 
this matter are invited to attend. Comments. 



No 



otice is hereby given in accordance with G.S. 
J50B-/2 that the Environmental Management 



197 



6:4 NORTH CAROLINA REGISTER May 15, 199 1 



PROPOSED RULES 



Commission intends to amend rule cited as 1 5A 
NCAC2B .0312. 

1 he proposed effective date of this action is 
January 1, 1992. 

1 he public hearing will be conducted at 7:00 
p.m. on July 25, 1991 at the Auditorium, Carteret 
Community College, 3505 Arendell Street, 
Morehead City, North Carolina. 

O omment Procedures: A 11 persons interested in 
this matter are invited to attend. Comments, 
statements, data and other information may be 
submitted in writing prior to, during or within 30 
days after the hearing or may be presented orally 
at the hearing. Oral statements may be limited 
at the discretion of the hearing officer. Submittal 
of written copies of oral statements is encouraged. 
For more information contact Suzanne H. Keen, 
Division of Environmental Management, P.O. Box 
29535, Raleigh, NC 27626-0535, (919) 

733-50S3. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSIFICATIONS 

.0312 WHITE OAK RIVER BASIN 

(b) The White Oak River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) December 13, 1979; 

(2) June 1, 1988; 

(3) January 1, 1990; 

(4) August 1, 1990; 

(5) August 1, 1991; 

(6) January 1, 1992. 

(e) The Schedule of Classifications and Water 
Quality Standards for the White Oak River Basin 
was amended effective January l^ 1992 with the 
reclassification of Peletier Creek (Index No. 
20-36-1 1) from its source to Bogue Sound from 
Class SA to Class SB with the requirement that 
no discharges be allowed. 



Statutory Authority G.S. 
143-215.3(a)(l). 



143-214.1; 143-215.1; 



iV otice is hereby given in accordance with G.S. 
150B-12 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule(s) 
cited as 15A NCAC 10A .1001. 

1 he proposed effective date of this action is 
September 1, 1991. 

1 he public hearing will be conducted at 10:00 
a.m. on June 18, 1991 at Room 386, Archdale 
Building, 512 N. Salisbury Street, Raleigh, NC 
27604-1188. 



Cc 



****************** 



> omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from June 
3, 1991 to July 3, 1991. Such written comments 
must be delivered or mailed to the N.C. Wildlife 
Resources Commission, 512 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER 10A -WILDLIFE RESOURCES 
COMMISSION 

SECTION .1000 - WARNING TICKETS 

.1001 PARTICULAR OFFENSES 

(b) Warning Tickets Permitted. Where there 
is a contemporaneous occurrence of more than 
three violations of the motorboat statutes or ad- 
ministrative rules, Wildlife Enforcement Officers 
may issue a citation on the two most serious vi- 
olations and a warning ticket on the lesser 
violation(s). In addition, Wildlife Enforcement 
Officers may issue warning tickets for the fol- 
lowing offenses; 

(1) Boating Violations: 

(A) number missing, lack of contrast, not 
properly spaced or less than three inches 
in height; 

(B) no validation decal affixed or incorrect 
placement; 

(C) fire extinguisher not charged or non- 
approved; 

(D) no fire extinguisher on boats with false 
bottoms not completely sealed to hull or 
filled with flotation material; 

(E) failure to notify North Carolina Wildlife 
Resources Commission of change of ad- 
dress of boat owner; 

(F) personal flotation device not Coast 
Guard approved; 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



198 



PROPOSED RULES 



(G) failure to display navigation lights when 

there is evidence that lights malfunctioned 

while underway; 
(H) no sound device (on Class I boats 

only); 
(I) muffler not adequate; 
(J) loaded firearm on access area; 
(K) parking on access area in other than 

designated parking area, provided traffic 

to ramp not impeded; 
(L) motorboat registration expired ten days 

or less; 
(M) no Type IV throwable personal 

flotation device on board, but other per- 



sonal flotation device requirements met; 
(N) violation of no-wake speed zone when 
mitigating circumstances present. 

Statutory Authority G.S. 1 13-140. 



ing upstream to the first impoundment, 
or to the headwaters, if unimpounded, the 
daily creel limit for striped bass and their 
hybrids is three fish. No striped bass be- 
tween the lengths of 22 inches and 27 
inches, both inclusive, may be retained 
from April 1 through May 3 1 , aft4 h» fck 
H*ay be rotainod from May 2i fc» Docom 
b»F 3-4-r 1990. except no fish may be re- 
tained in Roanoke River and its 
tributaries including Cashie. Middle and 
Eastmost rivers from May 1 to December 



31, 1991. 

Statutory Authority 
1 13-304; 113-305. 



G.S. 1/3-134; 113-292; 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 



****************** 

iV otice is hereby given in accordance with G.S. 
1 SOB- 12 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule(s) 
cited as ISA SCAC IOC .0305. 

1 he proposed effective date of this action is 
September 1, 1991. 

1 he public hearing will be conducted at 10:00 
a.m. on June 17, 1991 at Room 386, Archdale 
Building, 512 N. Salisbury Street, Raleigh, NC 

27611. 

(^ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from June 
2. 1991 to July 2, 1991 . Such written comments 
must be delivered or mailed to the N.C. Wildlife 
Resources Commission, 512 N. Salisbury Street, 
Raleigh. NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0300 - GAME FISH 

.0305 OPEN SEASONS: CREEL AND SIZE 
LIMITS 

(b) Exceptions 
(6) In the inland and joint waters of the 
coastal rivers and their tributaries extend- 



No 



otice is hereby given in accordance with G.S. 
1 SOB- 12 that the State Board of Education in- 
tends to amend rules cited as 16 NCAC 6C .0307 
and .0401. 

1 he proposed effective date of this action is Oc- 
tober 1, 1991. 



Th 



he public hearing will be conducted at 9:30 
a.m. for 16 NCAC 6C .0307 and 10:30 a.m. for 
16 NCAC 6C .0401 on June 14, 1991 at Third 
Floor Conference Room, Education Building, 116 
West Edenton Street, Raleigh, North Carolina 
27603-1712. 



Cc 



■ omment Procedures: Any interested person 
may present views and comments either in writing 
prior to or at the hearing or orally at the hearing. 

CHAPTER 6 - ELEMENTARY AND 
SECONDARY EDUCATION 

SUBCHAPTER 6C - PERSONNEL 

SECTION .0300 - CERTIFICATION 

.0307 CERTIFICATE RENEWAL 

(a) Certificates are valid for a period of five 
years from the effective date of issuance. Holders 
must renew their certificates within each five-year 
period. The department applies renewal credit 
to the person's certificate field(s) and or profes- 
sional duties. 

(b) The department bases renewal or rein- 
statement of a certificate on 15 units of renewal 
credit. A unit of credit is equal to one quarter 
hour or two-thirds of a semester hour of HIE 



199 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



credit, or one school year of teaching experience. 
The department will not record less than one 
credit on a certificate. 

(c) Currently employed personnel shall main- 
tain a professional growth plan in accordance 
with department guidelines. These persons may- 
obtain renewal credit for the following activities: 

(1) college or university credit activities; 

(2) teaching experience (one unit for every 
year); 

(3) local in-service courses or workshops 
which carry at least one unit of renewal 
credit and which meet the following crite- 
ria: 

(A) ten clock hours of direct training by the 
instructor pef wwt will equal one unit of 
renewal credit; over a poriod ef a l e ast (we 

.!■!< ■■■ hut n I i «"»-> Q r,'\ ti^i^i E I v qJ '~* '"•'■' ririi t re 

(B) content and instructional activities de- 
signed in a sequential manner to develop 
specified competencies of a specific popu- 
lation; 

(C) led by qualified instructional personnel 
and directly supervised by the sponsoring 
school unit; 

(D) Credit is granted on the basis of pro- 
gram completion and achievement of 
specified individual performance, which is 
determined by individual evaluation for 
specified competencies; 

(E) enrollment limited to assure account- 
ability of credit granted; 

(4) independent study of no more than five 
units of renewal credit per five-year re- 
newal period which meets the following 
criteria: 

(A) teachers and other certified personnel 
help to develop local independent study- 
procedures which the superintendent 
keeps on file and periodically sends to 
each certified employee; 

(B) the employee and the superintendent 
or his or her designee plan the experience 
in advance, including identification of 
competencies to be acquired and an eval- 
uation to determine satisfactory achieve- 
ment of those competencies; and 

(C) the amount of credit awarded is related 
to the complexity of the competencies to 
be achieved; 

(5) activities approved by the department, 
(d) Each LEA and approved governing boards 

of schools are responsible for assuring that all 
local courses and workshops and independent 
study activities which do not carry 1HE credit 
meet the standards contained in this Rule. 



(e) Agencies which the department authorizes 
to administer renewal requirements locally shall 
adopt a procedure to determine the appropriate- 
ness of credit in advance of the renewal activity. 
In determining appropriateness the agency must 
consider direct relationship to critical job re- 
sponsibilities, suitability of the content level and 
properly established credit for the activity. Each 
agency must report on participation in and ef- 
fectiveness of renewal activities as the department 
requests. 

(f) Persons who hold a North Carolina certif- 
icate but who are not currently employed in the 
public schools or by approved boards may earn 
renewal credit in college or university credit ac- 
tivities, or local courses and workshops or activ- 
ities approved by the department if they are 
admitted on a space available basis. The de- 
partment will determine the appropriateness of 
the credits on the basis of the direct relationship 
to the certificate field, the suitability of the con- 
tent level and properly established credits for the 
activity. 

(g) The department will approve in advance 
activities which are not established for certificate 
renewal by LEAs or which do not carry regular 
I HE credit, but which are offered for renewal 
credit. 



Authority G.S. U5C-12(9)a. 
Article IX. Sec. 5. 



N.C. Constitution, 



SECTION .0400 - LEAVE 

.0401 VACATION LEAVE 

(a) All full-time or part-time permanent public 
school employees who are working or on paid 
leave for at least one-half of the calendar days in 
a month earn vacation leave, based on length of 
aggregate state service in North Carolina. 

(b) A part-time permanent employee in a 
budgeted position earns vacation leave on a pro 
rata basis. 

(c) Employees earn vacation leave as follows: 



Yrs. of Aggregate 


Days 


Per Month 


State Service 


of Employment 


Less than 2 yrs. 




1.00 


2 but less than 5 yrs. 




1.15 


5 but less than 10 yrs. 




1.40 


10 but less than 15 vrs. 




1.65 


15 but less than 20 yrs. 




1.90 


20 yrs. or more 




2.15 



time or part-time permanent employment figured 
on the same basis as for longevity pay. The LEA 



6:4 NORTH CAROLINA REGISTER May 15, 1 99 1 



200 



PROPOSED RULES 



must establish the anniversary date for each em- 
ployee on the basis of the employee's aggregate 
state service. 

(e) The LEA may advance vacation leave to 
an employee. 

(f) The LEA transfers unused vacation leave 
when an employee transfers between LEAs. An 
employee may have leave transferred to or from 
a state agency or institution, community college 
or technical institute, a position subject to the 
State Personnel Act in a local mental health, 
public health, social services or emergency man- 
agement agency, if the receiving agency is willing 
to accept the leave; otherwise, the employee will 
be paid in a lump sum for accumulated leave not 
to exceed 30 workdays. 

(g) Leave payment at separation is subject to 
the following: 

(1) An employee who is overdrawn on leave 
when he or she separates will have the 
excess leave corrected through a deduction 
from the final salary check. 

(2) Payment for leave may be made on the 
regular payroll or on a supplemental pay- 
roll. The LEA makes payment from the 
same source of funds and in the same 
proportion as the employee's salary is 
paid. 

(3) Terminal leave payment is subject to the 
same deductions as salary, including re- 
tirement. 

(4) The receipt of lump sum leave payment 
and retirement benefit is not dual com- 
pensation. 

(5) The LEA makes payment for unpaid sal- 
ary, terminal leave and travel of a deceased 
employee to the personal representative 
of the deceased employee, or if there is no 
personal representative, to the Clerk of 
Superior Court of the county in which the 
employee resided. 

(h) Each LEA shall maintain leave records for 
all employees. LEAs must inform employees of 
their leave balances at least once a year. LEAs 
must retain leave records for separated employees 
for at least five years from the date of separation. 

(i) Leave must be taken in minimum units of 
one-half or whole days. 

(j) Instructional personnel and school bus 
drivers may not take vacation leave on days when 
students are scheduled to be in attendance. 
These persons may take vacation leave instead 
of sick leave on days when students are not 
scheduled to attend. LEAs may designate spe- 
cific scheduled workdays for required attendance 
as long as employees have an opportunity to take 
annual leave earned during the school year. 
Employees may charge leave taken only to 



scheduled teacher workdays and the ten vacation 
leave days scheduled in the school calendar. 

(k) Other employees may take vacation leave 
instead of sick leave. These employees must 
have an opportunity to take annual leave earned 
in the school year. 

Statutory Authority G.S. J/5C-272; 115C-285; 
U5C-302; II5C-31 6. 

TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

l\otice is hereby given in accordance with G.S. 
1 SOB- 12 that the North Carolina State Board of 
Certified Public Accountant Examiners intends to 
repeal rule(s) cited as 21 \CAC 8G .0306. 

1 he proposed effective date of this action is Oc- 
tober I, 1991. 

1 he public hearing will be conducted at 10:00 
a.m. on June 24, 1991 at the N.C. State Board of 
CPA Examiners, 1101 Ober/in Road, Ste. 104, 
Raleigh. NC 27605. 



Co 



■ omment Procedures: Any person interested in 
this rule may present oral comments relevant to 
the action proposed at the public rule-making 
hearing or deliver written comments to the Board 
office not later than Wednesday, June 12, 1991 . 
Anyone planning to attend the hearing should no- 
tify the Board office by 5:00 p.m. on Wednesday, 
June 12, 1991 , and stale whether they wish to 
speak on the proposal and whether they will speak 
in favor of the proposal or against it. Anyone 
speaking on the proposal will be limited to 10 
minutes. 

CHAPTER 8 - BOARD OF CERTIFIED PUBLIC 
ACCOUNTANT EXAMINERS 

SUBCHAPTER 8G - PROFESSIONAL ETHICS 
AND CONDUCT 

SECTION .0300 - OTHER RESPONSIBILITIES 

.0306 FIRM NAME OR STYLE OF 
A PRACTICE (REPEALED) 

Statutory Authority G.S. 55B-5; 93-12(9). 
****************** 



1\ otice is hereby given in accordance with G.S. 
1 SOB- 12 that the North Carolina Board of Phar- 



201 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



macy intends to amend rules cited as 21 NCAC 
46 .2201, .2502, .2605; and adopt rule cited as 21 
NCAC 46 .2602 (Existing Rules .2602 through 
.2607 will be renumbered as Rules .2603 through 
.2608), .2901 - .2902. 

1 he proposed effective date of this action is Oc- 
tober 1, 1991. 

1 he public hearing will be conducted at 2:00 
p.m. on June 25, 1991 at the Holiday Inn Four 
Seasons, Greensboro. North Carolina. 

O omment Procedures: Persons wishing to pres- 
ent oral data, views or arguments on a proposed 
rule or rule change may file a notice with the 
Board at least 10 days prior to the public hearing 
at which the person wishes to speak. Comments 
should be limited to 10 minutes. The Board's 
address: P.O. Box 499, Carrboro, NC 27510. 
Any person may file a written submission of com- 
ments or argument at any time up to and including 
July 8, 1991. 

CHAPTER 46 - BOARD OF PHARMACY 

SECTION .2200 - CONTINUING EDUCATION 

.2201 HOURS: RECORDS: PROVIDERS: 

CORRESPONDENCE: RECIPROCITY 

(d) Continuing education obtained for renewal 
of a license to practice pharmacy shall include at 
least two hours of credit for programs on 
impairment issues over a two year period. 
Pharmacists residing in North Carolina shall ob- 
tain such hours from a program approved by the 
Pharmacist Recovery Network and organl/.ed or 
sponsored by the North Carolina Pharmaceutical 
Association, the North Carolina Society of Hos- 

ital Pharmacists, the University of North 



Carolina at Chapel Hill, or Campbell University, 
(e) (4f Continuing education shall not serve as 
a barrier to reciprocity; however all licensees by 
reciprocity must observe the continuing educa- 
tion standards specified in (a), (b) and (c) of this 
Rule within the first renewal period after 
licensure in this state and the continuing educa- 
tion standard specified by Paragraph (d) of this 
Rule within two years after licensure in this state. 

Statutory Authority G.S. 90-85.6; 90-85.17; 
90-85.18. 

SECTION .2500 - MISCELLANEOUS 
PROVISIONS 

.2502 RESPONSIBILITIES OF PHARMACIST- 
MANAGER 



(Tj Any incident which unexpectedly produces 
serious or permanent injury or death that in- 
volves a drug or device dispensed from any lo- 
cation holding a permit shall be promptly 
reported in writing to the Board by the 
pharmacist-manager or person in charge. 

(k) It is the pharmacist-manager's responsibil- 
ity to separate from their dispensing stock all 
drug products more than six months out of date. 

Statutory Authority G.S. 90-85.6; 90-85.21. 

SECTION .2600 - DEVICES 

.2602 DISPOSABLE DEVICE 

Disposable device means a device for single use 
and capable of easy disposal with negligible loss 
or labeled as disposable, and ordinarily intended 
to be used and discarded within a week, such as 
IV administration sets. 

Statutory Authority G.S. 90-85. 3(e); 90-85.6. 

Note: Existing Rules .2602 through .2607 will be 
renumbered as .2603 through .2608. 

.2605 RECORDS 

All orders and records for devices shall conform 
in all pertinent respects with Board Rules .2301 
through .2305 of this Chapter. In addition to the 
requirements of those rules, the serial numbers 
for all devices dispensed to outpatients shall be 
preserved as part of the records; provided, that 
this requirement shall not apply to disposable 
devices. Disposable devices and devices used for 
administration of drugs are exempt from the re- 
cord keeping provisions of this Section. 

Statutory Authority G.S. 90-85. 3(e), (r); 90-85.6; 
90-85.22; 90-85.26. 

SECTION .2900 - PRODUCT SELECTION 

.2901 REPACKAGED PHARMACEUTICALS 

A prescription written for a drug product re- 
sulting from repackaging of a specific generic 
drug product by a distributor, repackager, or an- 
other manufacturer, may be dispensed as an or- 
der for either the specific generic drug product 
or the repackaged product. 

Statutory Authority G.S. 90-85.6; 90-85.21. 

.2902 RETURN OF OUTDATED DRUGS 

Adequate provisions for return of outdated 
drugs both full and partial containers as provided 
in G.S. 90-85. 28(a)(5) means that drugs can be 
returned up to six months after the labeled expi- 
ration date for prompt full credit or replacement. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



202 



PROPOSED RULES 



A finding by the Board that a manufacturer does 
not meet this standard will cause that manufac- 
turer's products to be ineligible for use in product 
selection. 



Statutory Authority 

90-85. 28 (a)(5). 



G.S. 



90-85.6; 



****************** 



iV otice is hereby given in accordance with G.S. 
150B-12 that the N.C. State Board of Examiners 
of Practicing Psychologists intends to amend 
rule(s) cited as 21 h'CAC 54 .1701, .1703 - .1704, 
.1802 - .1803, .1902 - .1904, .2001 - .2002, .2004, 
.2101. .2103; and adopt rule(s) cited as 21 NCAC 
54 .1706, .2006. 

1 he proposed effective date of this action is Oc- 
tober I. 1991. 

1 he public hearing will be conducted at 4:00 
p.m. on June 20, 1991 at the Holiday Inn, North, 
Winston-Salem, N.C. 



Co 



omment Procedures: Requests to present 
written or oral comments at the public hearing or 
other comments not presented at the hearing 
should be submitted in writing by June 17, 1991 , 
to the Board at the following address: 

N.C. State Board of Examiners of Practicing 

Psychologists 

University Hall 

Appalachian State University 

Boone, NC 28608 

CHAPTER 54 - BOARD OF PRACTICING 
PSYCHOLOGISTS 

SECTION .1700 - APPLICATION FOR 
LICENSURE 

.1701 INFORMATION REQUIRED 

(a) The information required for each applicant 
consists of: 

(1) typed, or legibly printed, notarized appli- 

cation form and application fee; 

(2) official, graduate college transcripts sent 
directly to the Board by the training 
institutions(s); 

(3) completed and acceptable information 
forms from present and past supervisors; 

(4) three completed and acceptable reference 
l e tt e rs forms from professionals who are 
familiar with the applicant's current work, 



one of which is from a doctoral level psy- 
chologist; 

(5) evidence of being 18 years of age and of 
good moral character; 

(6) acceptable information forms sent directly 
from other states and provinces in which 
the applicant has applied for a license or 
has been licensed, if applicable; 

(7) official report of any previous score ob- 
tained on the Examination for Profes- 
sional Practice in Psychology sent directly 
to the Board from the Professional Ex- 
amination Service, if applicable; and 

(8) additional documentation regarding edu- 
cational credentials described in 21 NCAC 
54 .1801(b) and (c| Practicing Psychol- 
ogist Requirements as of June 30, 1987, 
21 NCAC 54 .1802(b) Psychological As- 
sociate, and 21 NCAC 54 .1803(b) Prac- 
ticing Psychologist Requirements as of 
July 1. 1989, if applicable. 

J rt finnli,-ntii-\» 1 1 ■• 1 1 1 t1i\t \~. . 1 r. 11 1 I . n I Mfl Kl I * \-\ II Oaj *"/A 

I l_ir U.1 ■L'ML'LlllUll TT 111 TT^TV 17V I U I It 1 fl L-^J l_' T 1 1 1\- UK 'II I \J 

tf ali requested materials afe Hot- rocoivc - d within 
««e v#af from $h» 4ate b( application. Whon 
ouch is &<* case, a» applicant must totally reap 
f4^r submitting all information again. 

(b) . An application must contain all requested 
materials to be complete. An incomplete appli- 
cation is active for six months from the date of 
application. At the end of such time, if still in- 
complete, the application is void, and the appli- 
cant must totally reapply. 



Statutory Authority G.S. 



90-270.9; 



90-270.1 l(a),(b); 90-270.15; 150B-11(1). 

.1703 TEMPORARY LICENSES 

(d) A psychologist who meets all requirements 
of G.S. 90-270.1 1(a) for licensing, except the two 
years of acceptable and appropriate experience, 
may be issued a temporary license. To upgrade 
to permanent status, an application form must 
be filed with the Board, final supervision re- 
ports will be required from all psychologists 
whose supervision time is not already docu- 
mented in the applicant's file. 

Statutory Authority G.S. 90-270.5; 90-270.9. 

.1704 REVIEW PROCEDURE 

(c) If the credentials are declared unacceptable, 
the applicant is se- informed a«4 is given an ex- 
planation of the areas which are considered defi- 
cient and informed of his her right to an 
administrative hearing. 

(d) If, during the review of information sub- 
mitted with an application, questions arise from 
comments made in reference letters or supervisor 



203 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



reports which may pertain to the ethical behavior 
or the moral character of the applicant, such 
questions are dealt with in the following manner: 

(1) An effort is made to clarify the particulars 
of any allegations by correspondence or 
telephone calls with the person who has 
made the comments and /or with the ap- 
plicant. 

(2) If the questions are not resolved, the ap- 
plicant ohall may be asked to appear be- 
fore the Board for an interview. 

(3) Following th« any interview, the Board 
conducts a full discussion of the 
allegations and determines by formal vote 
whether the evidence is sufficient to deny 
licensure. 

(4) If licensure is denied, a gonoral an expla- 
nation of the grounds on which the deci- 
sion was made is given and the applicant 
is informed of his/her right to an admin- 
istrative hearing. 44*e applicant may 
present additional written evidence » 
support ef the application, moot pef- 
Gonally with the Board to support further 
the position taken, ©f request a cont e st e d 
ease hoaring. 



Statutory Authority G.S. 
I50B-1I(1). 



90-270.9: 90-270.15; 



.1706 REAPPLICATION 

To reapply, an applicant must again submit all 
information listed in 21 NCAC 54 .1701 Infor- 
mation Required and, if applicable, .1702 For- 
eign Degree Application Policy. A reapplication 
will be reviewed under the statutes and rules in 
effect on the date of reapplication. 

Statutory Authority G.S. 90-270.9; 150B-ll(l). 

SECTION .1800 - EDUCATION 

.1802 PSYCHOLOGICAL ASSOCIATE 

(c) An applicant whose credentials have been 
approved by the Board for examination at the 
practicing psychologist level may be issued a li^ 
cense as a psychological associate if the applicant 
fails an examination at the practicing psychol- 
ogist level but passes such at the psychological 
associate level. To receive this license, the ap- 
plicant must make a written request to the Board 
for licensure at the psychological associate level 
within 30 days from the date on which the ap- 
plicant is notified of his her examination score. 



Statutory A uthority 
90-270.4(a); 90-270.9; 
90-270. 11(b)(3). 



G.S. 90-270.2(f); 
90-270.1 l(b)(l)c; 



.1803 PRACTICING PSYCHOLOGIST 

REQUIREMENTS AS OF JULY 1, 1989 

(c) Two years of acceptable and appropriate 
supervised experience is as defined in 2j_ NCAC 
54 .2001 Supervisor, .2002 Nature of Supervision, 
and .2004 Time Requirements. 

Statutory Authority G.S. 90-270.2(a); 90-270.9; 
90-270.11 (a) (l)c. 

SECTION .1900 - EXAMINATION 

.1902 REPORTING OF SCORES 

Each applicant for licensure is informed in 
writing of his/her score on the national and state 
examinations. Those who have not passed are 
informed that licensure is denied and of the poli- 
cies regarding re-examination. 

Statutory Authority G.S. 90-270.9. 

.1903 RETAKING 

An applicant who has not passed an examina- 
tion is allowed to retake such on the next sched- 
uled examination date upon paying payment of 
the required examination fee. If an applicant fails 
an examination twice, he/she must totally reap- 
ply, submitting again all info nnat ion list e d m 34- 
NCAC r4 .1701 Informatk m Required aft4r tf 
applicable, .1702 Foroign Degree Application 
Policy. The examination may be taken only for 
licensure purposes. 

Statutory Authority G.S. 90-270.9. 

.1904 FAILURE TO APPEAR 

If an applicant does not appear for an exam- 
ination on the first scheduled examination date 
following approval »f credentials, he- sh e may be 
admitted to the sooond scheduled examination. 
M the applicant foils to appear toF the second es- 
amination, lioonsure is denied. U a» applicant to 
which admitted by the Board, or does not appear 
for reexamination on the first scheduled exam- 
ination date following failure of an examination, 
he/she may be admitted to the second scheduled 
examination. U the applicant foils to appear toF 
the second examination, licensure is denied. 
When licensure is denied, the applicant must 
totally reapply, submitting; auain all information 
fote4 » 24- NCAC 54 4W Information Re- 
quired afto? if applicable, . 1 702 Foreign Degree 
Application Policy. The examination may be 
tak e n only toF licensure purposes, must totally 
reapply. 

Statutory Authority G.S. 90-270.9. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



204 



PROPOSED RULES 



SECTION .2000 - SUPERVISION 

.2001 SUPERVISOR 

fa) A licensed practicing psychologist, pcrma 
nont, w4Jl h% recognised as a» appropriate super 

psychologist, temporary. ja addition, aay person 
who Vr*? m a psychology position with taa Stat e 
»f North Carolina aa December 34-r 1979, aaa 
who a* >4+H sa employed, w41i ha recognized a» 
appropriate supervisor fof aay psychological ae- 
sociat e af practicing psychologist, temporary, 
who is employed ay a state agency at depart 
ment; provided that- such supervision a>r aaa! was 
t+» December t*4t 1979, within tha psychologist's 
r e gular j*4* description aa4 is only fof activities 
which aa* pai4 ef tha regular duties aa4 respon 
sibilities el tha supervisee within his ; hor r e gular 
position. Being designated a* an- appropriate 
supervisor faf other licensoos m aa way affects a 
psychological associate's af practicing psych ol 
o gist's, temporary, obligation ta comply them 
selves with supervision requirements. 

(a) The following individuals may be recog- 
nized as an appropriate supervisor for any psy- 
chological associate or practicing psychologist, 
temporary: 

( 1 ) a licensed practicing psychologist, perma- 
nent, 

(2) professionals other than psychologists, in 
keeping with Rule .2005 in this Section; 

(3) any person who was in a psychology po- 
sition with the State of North Carolina on 



December 31 



1979, 



who 



still 



employed, provided that such supervision 
ijv and was on December 31. 1979, within 
the psychologist's regular job description 
and is only for activities which are part of 
the regular duties and responsibilities of 
the supervisee within his her regular posi- 
tion at a state agency or department: 

(4) a doctoral level licensed psychologist who 
is licensed in the state or province where 
the supervisee is practicing psychology; 
or 

(5) an individual who, although not licensed 
as a psychologist, is_j in the opinion of the 
Board, trained as a psychologist. 

(b) 1 he Board may disapprove an otherwise 
qualified supervisor for any psychological associ- 
ate or practicing psychologist, temporary, if the 
potential supervisor, m the opinion of the Board, 
is not acceptable. Reasons tor which a proposed 
supervisory relationship may be disapproved 
shall include, but not be limited to: 

( 1 ) evidence that the potential supervisor is 
not competent or qualified to supervise 
the supervisee; 



(2) evidence that the supervisor has failed to 
adhere to ethical standards; 

(3) evidence that there is a lack of congruence 
between the potential supervisor's train- 
ing, experience, and area of practice and 
the supervisee's proposed area(s) of prac- 
tice; or 

(4) the supervisor has an encumbered license. 

(c) fa} It is the supervisor's responsibility to 
provide the best possible professional guidance 
which is mutually beneficial to both the 
supervisee and to the public which he/she ulti- 
mately serves. It is the supervisor who serves as 
a primary professional guardian of the supervisee, 
the profession, and the public. Supervisors are 
to carefully assess their own ability to meet the 
particular needs of potential supervisees. It is 
expected that the professional expertise and ex- 
perience of the supervisor will parallel the ex- 
pected practice of the supervisee. Should there 
be some areas in which the supervisor does not 
feel so qualified, adjunct supervisors shall be 
sought, although this additional supervision is, in 
no way, to replace the overall responsibility of 
the primary supervisor. Clear professional goals 
shall be set by the supervisor and supervisee for, 
and during, the period of supervision and these 
goals must be evaluated on a regular basis. 

(d) (a) In order to maintain the professional 
nature of the supervision, a familial or strongly 
personal relationship shall not exist between the 
supervisor and supervisee, except in extra- 
ordinary circumstances, such as the unavailability 
of any other qualified supervisor. In such cases, 
the Board may require documentation that no 
other supervision is available and reference letters 
from colleagues commenting on the appropriate- 
ness of the proposed supervisory relationship. 



Statutory A uthority 
90-270.5(d); 90-270.9. 



G.S. 



90-270.2(f); 



.2002 NATURE OF SUPERVISION 

(c) The supervisee and his her supervisor arc 
expected to determine jointly which cases, issues, 
and techniques are most appropriate and neces- 
sary for supervision, although both parties are 
fully accountable tor all professional activities in 
terms of adequate standards of care and adher- 
ence to other relevant ethics principles. Specific 
supervision is not mandated for each person 
evaluated or treated, or for everv treatment, 
evaluative technique, or professional activity 
undertaken. Supervisors are not required to sign 
or co-sign reports, treatment plans, letters, or 
other clinical documents for which the supervisee 
may be fully or in part responsible; neither is it 
necessary that such clinical documents reflect the 



105 



6:4 NORTH CAROLINA REGISTER May 15, 1 99 1 



PROPOSED RULES 



supervisory process. Agencies are not, of course, 
precluded from requiring supervisor signatures 
or co-signatures. 

Statutory Authority G.S. 90-270. 2(f); 
90-270.5(d); 90-270.9. 

.2004 TIME REQUIREMENTS 

(a) Practicing Psychologist, Temporary. All 
activities involving the practice of psychology are 
subject to review by a supervisor. 

(2) Permanent status requires at least two full 
calendar years and 3100 hours of post- 
doctoral supervised practice. Temporary 
licensees are encouraged to meet this re- 
quirement through full-time practice. 
Full-time practice is credited based on the 
number of weeks of actual practice. 
Part-time practice is credited based on the 
number of hours per week of actual prac- 
tice. A maximum of 31 hours may be 
credited for a week of actual practice. U 
the required supervised experience is Ret- 
accumulated wit lun twe foH calendar 
years, a written request must be made fof 
extension ef the temporary license. A-» 
explanation must be provided te the 
Board regarding t+te necessity fef oxten 
sion. aft4 a statement provided indicating 
the 4ate that the supervision wiH be com 
pletod. 

Statutory Authority G.S. 90-270. 2(f); 
90-270.4(a2); 90-270.5(d); 90-270.9. 

.2006 PSYCHOLOGICAL ASSOCIATE 
ACTIVITIES 

(a) Activities involving overall personality ap- 
praisal or classification are subject to review by 
a supervisor. Such appraisal and classification 
requiring supervision is defined as any assessment 
or evaluative technique (i.e., testing, observation, 
interviewing, or reports of others) which leads to 
conclusions, inferences, and hypotheses regarding 
personality functioning. Included are all state- 
ments relative to personality attributes, features, 
traits, structure, dynamics, and pathology or as- 
sets, whether or not these lead to a diagnosis or 
diagnostic impression. Techniques include but 
are not limited to the following: observation; 
open-ended and structured interviewing; word 
association tests; diagnostic play therapy; 
autobiographical techniques; mental status ex- 
aminations; and, the use of "projective" and 
"objective" techniques. "Projective" techniques 
include such instruments as the Rorschach, The- 
matic Apperception Test, Tasks of Emotional 
Development, the Children's Apperception Test, 



the House-Tree-Person Technique, the Draw-A- 
Person (when used to assess personality), Kinetic 
Family Drawings, sentence completion tests, and 
all similar tests. "Objective" personality tests 
include the Minnesota Multiphasic Personality 
Inventory, the Millon tests, the California Per- 
sonality Inventory, the 16PF, the California Test 
of Personality, and all other self-report invento- 
ries and questionnaires, as well as scales and 
check lists completed by others. The tests iden- 
tified in this Rule as requiring supervision do not 
constitute an exhaustive list, only the most com- 
monly utilized measures. 

(b) Neuropsychological evaluation requires 
supervision. 

(c) Not requiring supervision are 
neuropsychological screening and interviewing 
and observation which lead to simple behavioral 
descriptions. Initial screening interviews which 
may lead to referral for more extensive evaluation 
or treatment do not require supervision. Also 
not requiring supervision are adjective check lists, 
behavior rating scales, and other rating devices 
which may be completed by a variety of profes- 
sional and non-professional observers and are 
subsequently interpreted by other parties. 

(d) Activities involving personality counseling 
or personality readjustment techniques are sub- 
ject to review by a supervisor. In determining 
whether or not supervision is required, the fol- 
lowing must be considered: 

(1) the nature of the techniques to be used; 

(2) the target behavior, attitude, affect, habit, 
or other personality attribute or feature to 
be acquired or modified; and 

(3) the population which is treated or ad- 
dressed. 

(e) Supervision is required for activities if any 
one of the following is met: 

(1) techniques: Those requiring supervision, 
whether utilized by the psychological As- 
sociate or those supervised by him her, 
include but are not limited to 
psychotherapy, group therapies, 

therapeutic counseling or therapeutic 
interviewing, and hypnotherapeutic pro- 
cedures. Also included are behavior 
management and behavior modification 
techniques which utilize punishment 
(negative reinforcers, aversive stimulation, 
and, in some instances, the withdrawal of 
positive reinforcers), extended "time out" 
(beyond several minutes), seclusion (in 
which a client is locked in a room or oth- 
erwise prevented from leaving), and all 
physical restraint. Also included are any 
other techniques which are physically in- 
trusive, are restrictive of basic human 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



206 



PROPOSED RULES 



rights, or are experimental in nature in 
which the efficacy and degree of risk are 
unknown. Biofeedback techniques, how- 
ever, do not require supervision; 

(2) target behaviors or symptoms: These in- 
clude behaviors, attitudes, affects, habits, 
or other personality attributes or features, 
which, when addressed either directly with 
the person or in consultation, include ac- 
tivity which is actually or is potentially 
maladaptive or harmful to the person, 
others, or the physical environment. 
These include but are not limited to: ad- 
justment difficulties; attention deficit; 
hyperactivity; impulsivity; sexual difficul- 
ties; aggression; somatization; anxiety; 
self-injurious behavior; substance use; 
antisocial behavior; conduct disturbances; 
elimination and eating disturbances; de- 
pression or other deviant mood; psychotic 
activity; interpersonal difficulty; and, any 
other seriously self-defeating or self- 
compromising behavior. Supervision is 
required regardless of whether the behav- 
ior or symptoms meet the criteria for 
formal diagnosis; and 

(3) clinical populations: All interventions 
with clinical populations require super- 
vision. These are comprised of persons 
with discernible mental, behavioral, emo- 
tional, psychological, and psychiatric dis- 
orders as evidenced by an established Axis 
I or Axis II diagnosis or V Code condition 
in the then current DSM, and all persons 
meeting the criteria for such diagnoses. 
Not included, however, would be persons 
with mental retardation diagnoses or spe- 
cific developmental disorders (learning 
disabilities) when the psychological asso- 
ciate's interventions are in the domain of 
cognition rather than personality, and 
when there is no accompanying behavior 
or personality disorder. Not requiring 
supervision are techniques designed to 
stop or reduce cigarette smoking in other- 
wise non-clinical populations. Any per- 
son who carries a diagnosis from an 
alternative nosology (e.g., GAP or ICD), 
or is a Willie M. Class member, or quali- 
fies for an educational placement based 
on an emotional or behavioral condition, 
or meets the diagnostic criteria from DSM 
or any of the above, whether established 
or not, is considered to be a member of a 
clinical population. Most persons in 
outpatient psychiatric or psychological 
treatment and many children with juvenile 



court involvement would thus be in- 
cluded. Supervision is required for a psy- 
chological associate who provides clinical 
supervision to other service providers who 
are engaged in activities which would re- 
quire supervision if directly provided by 
the psychological associate, 
(f) Psychological associates may use non- 
therapy, non-punitive, non-intrusive, non- 
experimental techniques without supervision to 
teach or facilitate new behaviors in the absence 
of maladaptive behavior or psychopathological 
conditions. 

Statutory Authority G.S. 90-270.2(f); 90-270.9. 

SECTION .2100 - RENEWAL 

.2101 LICENSE RENEWAL FORM 

(a) The license renewal application form is 
mailed to each licensee in the fall of each year. 
It is a licensee's responsibility to renew his her 
Irviw in a ti meK m. tinier, and to notih the 
Board if a renewal application form is not re- 
ceived. 

(b) J» addition te the request fof current ad- 
dresses, the form requires The form may require 
the licensee to supply the following information 
including, but not limited to, the following: 
current addresses; area of specialty; principal set- 
ting of practice; whether or not the licensee re- 
ceived any formal continuing education during 
the past year; report on all supervision contract 
forms on file with the Board if licensed at the 
psychological associate or practicing psychol- 
ogist, temporary, level. 

(c) Failure of a postal service to deliver the re- 
newal application properly, or failure of a 
licensee to submit all required information on the 
appropriate form bv anv established statutory' 
deadline, does not excuse the late fee or prevent 
license suspension. 

Statutory' Authority G.S. 90-270.9; 90-270.14; 
I50B-11(1). 

.2103 REINSTATEMENT 

(a) The information required for each applicant 
requesting reinstatement alter a license has been 
suspended due to non-renewal &f aftet a practic 
me psychologist, temporary, licens e ha* expired 
consists of: 

(1) typed, or legibly printed, notarized appli- 

cation form; 

(2) completed and acceptable information 
forms from aM present and past supervi- 
sors; since the lic e ns e w» suspended e* 
expired: 



20: 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



PROPOSED RULES 



(3) three completed and acceptable current 
prof e ssional reference l e tters, forms from 
professionals who are familiar with the 
applicant's current work, one of which is 
from a doctoral level psychologist; 

(4) acceptable information forms sent directly 
from other states and provinces in which 



with the (5) 



the applicant has applied for a license or 
has been licensed, if applicable; and 
official graduate college transcripts, not on 
file in the Board's office, sent directly to 



the Board by the training institution(s). 
Statutory Authority G.S. 90-270.9; 90-270.15. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



208 



FINAL RULES 



1 he List of Rules Codified is a listing of rules that were filed to be effective in the month indicated. 

lKules filed for publication in the NCAC may not be identical to the proposed text published pre- 
viously in the Register. Rules filed with changes are noted with ** Amended, ** Adopted. Please 
contact this office if you have any questions. 

/xdopted rules filed by the Departments of Correction. Revenue and Transportation are published 
in this section. These departments are not subject to the provisions ofG.S. J SOB, Article 2 requiring 
publication in the N.C. Register of proposed rules. 

U pon request from the adopting agency, the text of rules will be published in this section. 

lunctuation, typographical and technical changes to rules are incorporated into the List of Rules 
Codified and are noted as * Correction. These changes do not change the effective date of the rule. 



TITLE 5 - DEPARTMENT OF CORRECTION 



CHAPTER 2 - DIVISION OF PRISONS 



SUBCHAPTER 2F - CUSTODY AND SECURITY 



SECTION .2500 - SMOKING - NO SMOKING 



.2502 PROCEDURE 

(a) Responsibility: 

(1) The Correctional Center Superintendent and or Area Administrator or Institution Head, pur- 
suant to this policy, should establish smoking no smoking areas within the facility. 

(2) The Superintendent or Institution Head should incorporate the smoking no smoking desig- 
nations in the facility's Standard Operating Procedures. 

lb) Designation of No Smoking .Areas. Smoking is prohibited in the following locations: 

( 1 ) Hazardous Areas: These areas include any location which has or may have flammable liquids, 
gases or vapors, as well as any area where there is a collection of readily combustible materials. 
.Any questions about such designation should be referred to the Division's Safety Officer. 

(2) Elevators. 

(3) Health Care Facilities: These areas include clinical treatment areas, i.e. operating rooms, ex- 
amining rooms, nursing stations, x-ray suites. Smoking in other areas of health care facilities is 
restricted to private offices and other non-clinical areas designated by the Health Treatment 
Administrator or Nursing Supervisor. 

(4) Food Preparation and Serving Areas: These areas include sections of the kitchen where and 
when food is being prepared and or served. 

(5) Vehicles: This prohibition applies when inmates are being transported and when the vehicle is 
being fueled and or serviced. 

(o Designation of Restricted Smoking Areas: 
(1) Restrictions may include designated smoking and no smoking areas in each specific location 
within the facility. Prior to designating smoking no smoking areas, the Superintendent or In- 
stitution Head should review the physical layout of the facility and the existence of ventilation 
in a particular location within the facility. 



209 6:4 XORTH CAROLISA REGISTER May 15, 1991 



FINAL RULES 



(2) The designation of restricted smoking areas will be established in the following locations, except 
as authorized by the Superintendent or Institution Head for a designated use and/or time: 

(A) Dining facilities; 

(B) Classrooms; 

(C) Libraries; 

(D) Dormitories; 

(E) Single Cell Buildings; 

(F) Gyms; 

(G) Recreation Buildings; 
(H) Auditoriums; 

(I) Chapels. 

(3) Smoking restrictions in prison enterprise operations should be determined by safety issues, the 
nature of the specific operation, and the physical environment of the operation. 

(4) The Superintendent or Institution Head should consider establishing smoking/no smoking areas 
in any other location within the facility not previously specified. 

History Note: Statutory Authority G.S. 148-1 1; 
Eff. April 1, 1991; 
Amended Eff. June 1, 1991. 

.2503 NOTICE 

(a) No Smoking Areas. "No Smoking" signs should be placed in areas where smoking is prohibited 
or restricted. 

(b) Smoking Areas. "Smoking" signs should be placed in areas where smoking is permitted. Areas 
where smoking is permitted should have an adequate number of non-combustible ashtrays. 



History Note: Statutory Authority G.S. 148-1 1; 
Eff. April 1, 1991; 
Amended Eff. June 1, 1991. 



TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 1 1 - PROPERTY TAX COMMISSION 

SECTION .0100 - ORGANIZATION OF COMMISSION 



.0101 LOCATION 

The Property Tax Commission is located in the Williams-Cross Building at the intersection of 
Hillsborough Street and Boylan Avenue in Raleigh, North Carolina. The mailing address of the 
Commission is: 706 Hillsborough Street, Raleigh, N. C. 27603. 

History Note: Statutory Authority G.S. 105-288; 105-290; 143B-217 to 143B-225; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1991. 

.0102 GENERAL PURPOSE 

History Note: Statutory Authority G.S. 105-288; 143B-217 to I43B-225; 
143B-10; 

Eff. February I, 1976; 
Repealed Eff June 1, 1991. 

.0103 COMMISSION ORGANIZATION 

The Property Tax Commission consists of five members including a chairman who is designated by 
the Governor and a vice-chairman elected by the members. The Governor appoints three of the 



6:4 NORTH CAROLINA REGISTER May 15, 1991 210 



FINAL RULES 



members and the General Assembly appoints two. Of the members appointed by the General As- 
sembly, one is recommended by the Speaker of the House and one is recommended by the President 
of the Senate. The member appoint on the recommendation of the Speaker of the House is appointed 
for a two year term; all other members are appointed for a four year term. The Director of the Property 
Tax Division serves as Secretary for the Commission and the employees of the Ad Valorem Tax Section 
serve as its staff to investigate appeals and perform other duties as requested by the Commission. 



History Sole: Statutory Authority G.S. 143B-217 to 143B-225; 
Eff. February 1, 1976; 
Amended Eff. June 1. 1991. 



SECTION .0200 - APPEALS TO PROPERTY TAX COMMISSION 



.0201 WHO MAY APPEAL 

Any person having an ownership interest in property subject to taxation within a taxing jurisdiction 
may appeal; however, this provision shall not be construed as giving any person a right to represent the 
interest of another person. Representation of a party in a proceeding before the Property Tax Com- 
mission constitutes the practice of law. 

History Note: Statutory Authority G.S. 84-4; 105-290; 143B-222; 
Eff. February 1, 1976; 
Amended Eff June 1, 1991. 

.0202 WHEN APPEALS MAY BE TAKEN 

A taxpayer who is dissatisfied with a decision concerning the listing, appraisal, or assessment of 
property made by a board of county Commissioners, a board of equalization and reveiw, or (in the case 
of public service companies) the Department of Revenue may appeal to the Property Tax Commission. 

History Sole: Statutory Authority G.S. 105-2SS; 105-290: 
Eff. February 1, 1976; 
Amended Eff June 1, 1991. 

.0203 APPEALS EROM LISTING, APPRAISAL, OR ASSESSMENT DECISIONS 
.0204 APPEALS EROM ADOPTION OF SCHEDULES, STANDARDS AND RULES 

Historv Note: Statutory Authority G.S. I05-290(b),(c); 

Eff. February 1. 1976; 
Repealed Eff June 1. 1991. 

.0205 NOTICE OF APPEAL 

A notice of appeal to the Commission shall be in writing, and shall state the grounds for the appeal. 
The notice of appeal should be signed by the property owner or his attorney. Non-attomey "tax rep- 
resentatives" may sign a notice of appeal on behalf of the property owner provided a signed and nota- 
rized power of attorney or other properly executed authorization to represent the property owner is filed 
with the notice. A power of attorney form is available from the Commission. A copy of the notice 
of appeal should be sent to the county assessor. 

History Sole: Statutory Authority G.S. 105-290; I43B-222; 
Eff. February I, 1976; 
Amended Eff June 1, 1991. 

.0206 WHO SHALL HEAR THE APPEAL 

History Note: Statutory Authority G.S. 105-290(b); 
Eff. February 1, 1976; 
Repealed Eff. June 1. 1991. 



211 6:4 NORTH CAROLINA REGISTER May 15, 1991 



FINAL RULES 



.0207 PLACE OF HEARING 

AH hearings before the Commission will be held in Raleigh, North Carolina unless the Commission 
designates another location. 

History Note: Statutory Authority G.S. 105-290; 143B-222; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1991. 

.0208 PRE-HEARFNG CONFERENCE 

In any appeal, the Commission or the staff of the Commission may hold a conference in advance of 
the hearing for the purpose of simplifying the issues, stipulating certain facts or findings, and discussing 
any other matters which will help to expedite the appeal. 

History Note: Statutory Authority G.S. 105-291; 143B-222; 
Eff. February 1, 1976; 
Amended Eff June 1, 1991. 

.0209 CONDUCT OF HEARFNG 

The hearing before the Commission is a formal adversarial proceeding conducted under the rules of 
evidence as applied in the Trial Division of the General Courts of Justice. The North Carolina Rules 
of Civil Procedure do not apply to proceedings before the Commission. 

History Note: Statutory Authority G.S. 1A-1; 105-290; 143B-222; 
Eff. February 1. 1976; 
Amended Eff. June 1, 1991. 

.0210 VALUATION IS FLNAL AND CONCLUSIVE 

History Note: Statutory Authority G.S. 105-290; 
Eff. February I, 1976; 
Repealed Eff June I, 1991. 

.0211 JUDICIAL REVIEW 

No party aggrieved by a final decision or order of the Commission may appeal unless within 30 days 
after the entry of such decision or order the party shall file with the Commission a notice of appeal and 
exceptions which sets forth specifically the ground or grounds upon which the aggrieved party considers 
said decision or order to be unlawful, unjust, unreasonable, or unwarranted. Trie notice of appeal shall 
clearly state the errors alleged to have been committed by the Commission. 

History Note: Statutory Authority G.S. 105-345; 
Eff. February 1, 1976; 
Amended Eff. June 1, 1991. 

.0212 APPEALS ACKNOWLEDGED AND REPLIES THERETO PERMITTED 

(a) Notices of appeal to the Commission will be acknowledged in writing and an application for 
hearing will be mailed to the appellant. A copy of the letter of acknowledgement will also be mailed 
to the county assessor and to the county attorney. 

(b) Unless an extension has been requested and granted, the application for hearing must be filed 
within 30 days of the date of the letter of acknowledgment or the appeal may be dismissed. A copy 
of the completed application for hearing must also be sent to the county attorney at the same time. 

(c) The county attorney will be allowed 20 days from the receipt of the completed application for 
hearing to file a written Answer to the appeal. A copy of the Answer shall be sent to the appellant at 
the same time. The county's failure to file an Answer, however, shall not constitute a waiver of the 
county's rights nor an admission of the appellant's allegations. 

History Note: Statutory Authority G.S. 143B-222; 
Eff. June 1, 1982; 
Amended Eff. June 1, 1991. 



6:4 NORTH CAROLINA REGISTER May 15, 1 991 212 



FINAL RULES 



.0215 PARTIES FURNISHED NOTICE OF PROPOSED HEARING DATE 

Approximately 50 days before the scheduled dates of a hearing, the Secretary of the Commission will 
establish a proposed hearing calendar of appeals to be heard and will mail to each of the affected parties 
a notice setting out the proposed dates of the hearing. Any party objecting to the proposed dates must 
notify the Secretary in writing within 10 days of the mailing of the notice, and shall set forth the specific 
objections in the form of a motion to continue. The Secretary shall rule on motions to continue timely 
made. 

History Sole: Statutory Authority G.S. 105-290; 143B-222; 
Eff. June 1, 1982; 
Amended Eff. June 1. 1991. 

.0217 APPEARANCE AT HEARING REQUIRED 

(a) In order to pursue an appeal, the appellant must either appear at the scheduled hearing or be re- 
presented at the hearing by an attorney at law. Attorneys at law not authorized to practice in North 
Carolina must comply with the provisions of G.S. 84-4.1, which requires that a North Carolina attor- 
ney appear with the out-of-state attorney at the hearing. 

(b) If no continuance has been granted, the failure of the appellant or his attorney to appear at the 
scheduled time and date for hearing is grounds for dismissal of the appellant's appeal. The Commission 
may dismiss the appeal on motion of the opposing party or on its own motion. 

(c) If the appellant is a trust, a trustee may appear for the trust; if the appellant is a partnership, a 
general partner may appear for the partnership. A family member may not represent another family 
member; an attorney-in-fact may not represent grantor of the power of attorney. 

History Note: Statutory Authority G.S. S4-4; S4-4.1; 143B-222; 
Eff. June 1, 1991. ' 

.0218 DISCOVERY 

(a) Discovery methods are means designed to assist parties in preparing to meet their responsibilities 
and protect their rights during hearing without unduly delaying, burdening, or complicating the hearings 
process and with due regard to the rights and responsibilities of other parties and persons affected. 
Accordingly, parties are obliged to exhaust all less formal opportunities to obtain discoverable material 
before utilizing this Rule. 

(b) Any means of discovery available pursuant to the North Carolina Rules of Civil Procedure, G.S. 
1A-1, is allowed. If the party from whom discovery is sought objects to the discovery, the party seeking 
the discovery may file a motion with the Commission to obtain an order compelling discovery. In the 
disposition of the motion, the party seeking the discovery shall have the burden of showing that the 
discovery is needed for the proper presentation of the party's case, is not for purposes of delay, and that 
the issues in controversy are significant enough to warrant the discovery. In ruling on a motion for 
discovery, the Commission shall recognize all privileges recognized at law. 

History Note: Statutory Authority G.S. 143B-222; 
Eff. June 1. 1991. 

.0219 COMMISSION STAFF NOT TO BE CALLED AS WITNESSES 

No member of the staff of the Commission may be called as a witness in a proceeding before the 
Commission unless the Commission shall first find that the testimony of a staff member is necessary 
to prevent manifest injustice to a party. 

History Note: Statutory Authority G.S. 143B-222; 
Eff. June I, 1991. 

TITLE 19A - DEPARTMENT OF TRANSPORTATION 



CHAPTER 3 - DIVISION OF MOTOR VEHICLES 



'13 6:4 NORTH CAROLINA REGISTER May 15, 1991 



FINAL RULES 



SUBCHAPTER 3D - LICENSE AND THEFT SECTION 
SECTION .0800 - SAFETY RULES AND REGULATIONS 



.0801 SAFETY OF OPERATION AND EQUIPMENT 

(a) The rules and regulations adopted by the U.S. Department of Transportation relating to safety 
of operation and equipment (49 CFR Parts 390-398 and amendments thereto) shall apply to all for-hire 
motor carrier vehicles, whether common carriers, contract carriers or exempt carriers and all private 
motor carriers, while engaged in interstate commerce over the highways of the State of North Carolina. 

(b) The rules and regulations adopted by the U.S. Department of Transportation relating to safety 
of operation and equipment (49 CFR Parts 390-398 and amendments thereto) shall apply to all for-hire 
motor carrier vehicles, whether common carriers, contract carriers or exempt carriers and all private 
motor carrier vehicles engaged in intrastate commerce over the highways of the State of North Carolina 
if such vehicles have a GVWR of greater than 26,000 pounds; are designed to transport 16 or more 
passengers, including the driver; or transport hazardous materials required to be placarded pursuant to 
49 CFR 170-190. Provided, the following exceptions shall also apply to all intrastate motor carriers: 

(1) 49 CFR 396.17 shall not apply to vehicles operated by farmers or their employees solely within 
North Carolina. 

(2) An intrastate motor carrier driver may not drive more than 12 hours following eight consecutive 
hours off duty; or for any period after having been on duty 16 hours following eight consecutive 
hours off duty; or after having been on duty 70 hours in seven consecutive days; or more than 
80 hours in eight consecutive days. An intrastate driver will be determined by his previous seven 
days of operation. 

(3) Persons who otherwise quality medically to operate a commercial motor vehicle within the State 
of North Carolina will be exempt from provisions of Part 391.11(b)(1) and Part 391.41(b)(1) 
through (11) and therefore will be authorized for intrastate operation if licensed prior to March 
30, 1992, are approved by an Exemption Review Officer appointed by the Commissioner of 
Motor Vehicles and meet all other requirements of this Section. These drivers shall continue 
to be exempt upon completion of a biennial medical examination indicating the condition has 
not worsened or no new disqualifying conditions have been diagnosed and upon continued ap- 
proval of an Exemption Review Officer. 



History Note: Statutory Authority G.S. 20-384; 
Eff. December 1, 1983; 

Amended Eff. June 1, 1991; November 1, 1990; 
September I. 1990; N member 1, 1988. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 214 



FINAL RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 

LIST OF RULES CODIFIED 

MAY 1991 



AGENCY 
DEPARTMENT OF AGRICULTURE 



ACTION TAKEN 



2 NCAC 9L .0506 Amended 

DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT 



4 NCAC 3G 


.0001 - .0003 




Repealed 




.0104 




Adopted 




.0201 




Adopted 




.0202 




** Adopted 




.0301 




** Adopted 




.0302 - .0303 




Adopted 




.0401 - .0403 




Adopted 




.0501 




** Adopted 




.0503 - .0504 




Adopted 


" 


.0101 - .0105 




Repealed 




.0201 - .0206 




Repealed 




.0301 -.0305 




Repealed 




.0501 -\0503 




Repealed 




.0510 




Repealed 




.0517 - .0520 




Repealed 


12C 


.0005 - .0006 




** Amended 


19R 


.0101 




Adopted 




.0102 - .0103 




** Adopted 




.0201 - .0202 




Adopted 




.0301 - .0302 




Adopted 




.0303 - .0304 




** Adopted 




.0305 




Adopted 




.0401 




Adopted 




.0402 




** Adopted 




.0501 




Adopted 




.0502 




** Adopted 




.0503 - .0505 




Adopted 




.0601 




Adopted 




.0602 




** Adopted 




.0603 - .0604 




Adopted 


DEPARTMENT OF CORRECTION 






5 NCAC 2B 


.0301 




Amended 


OFFICES OF THE GOVERNOR/LIEUTENANT GOVERNOR 




9 NCAC 2B 


Executive Order Number 135 






Eff. March 19. 


1991 






Executive Order Number 136 






Eff. March 20, 


1991 






Executive Order Number 137 






Eff. March 22, 


1991 





275 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



FINAL RULES 





Executive Order Number 138 




Eff. March 28, 1991 


DEPARTMENT OF HUMAN RESOURCES 


10 NCAC 3R 


.2801 - .2809 ** Adopted 


3U 


.0511 * Correction 


14K 


.0325 Repealed 




.0408 Amended 


20F 


.0501 Adopted 




.0502 - .0503 ♦* Adopted 




.0504 Adopted 




.0505 -.05 10 ** Adopted 


26H 


.0202 Temp. Amended 




Expires 09-30-91 




.0204 Temp. Amended 




Expires 09-30-91 




.0206 Temp. Amended 




Expires 09-30-91 


42C 


.3301 Amended 


42D 


.1401 Amended 


DEPARTMENT OF INSURANCE 


11 NCAC 14 


.0308 ** Adopted 


DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 


15A NCAC 7H 


.0208 ** Amended 


8A 


.0101 - .0102 ++ Amended 




.0202 + * Amended 


SB 


.0108 - .0109 Amended 




.0201 Amended 




.0202 - .0205 ** Amended 




.0302 Amended 




.0303 Amended 




.0404 - .0405 ** Amended 


8C 


.0002 ** Amended 




.0004 +* Amended 


8D 


.0004 ** Amended 




.0005 - .0006 Amended 


10H 


.0807 ** Amended 


13A 


.0009 - .0010 Amended 




.0015 Repealed 




.00 16 -.00 17 * Correction 


16A 


.0801 Adopted 




.0802 ** Adopted 




.0803 Adopted 




.0804 ** Adopted 




.0805 Adopted 




.0806 ♦+ Adopted 




.0807 -.08 10 Adopted 


18A 


.1957 ++ Amended 




.2501 - .2507 Repealed 




.2508 Adopted 




.2509 ** Adopted 




.25 10 -.25 11 Adopted 




.2512 ** Adopted 




.2513 Adopted 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



216 



FINAL RULES 



.2514- 


.2515 


.2516- 


.2519 


.2520 




.2521 - 


.2535 


.2536 




.2601 




.2604- 


.2605 


.2607 




.2608 




.2609 




.2610 




.2612 




.2613 




.2614- 


.2615 


.2617 




.2619 




.2623 - 


.2628 


.2629 




.2630 




.2631 




.2632 - 


.2634 


.2635 




.2637 




.2638 




.2640 




.2641 




.2701 




.2702 




.2704 - 


.2705 


.2706 




.2708 




.2710 




.2712 




.2714 




.2716 




.2718 




.2720 




.2722 




.2723 




.2724 




.2725 




.2901 




19A .0102 




.0201 




19H .0601 




.1001 




.1301 




21 D .0706 




24A .0303 




DEPARTMENT OF EDI CATION 




16 NCAC 6C .0205 




.0310 




6H .0010 




N.C. AlCTIONEERS COMMISSION 




21 NCAC 4B .0201 





** Adopted 
** Adopted 
Adopted 
** Adopted 
Adopted 
** Amended 
** Amended 
** Amended 
** Amended 
Amended 
** Amended 
** Amended 
Amended 
** Amended 
** Amended 
** Amended 
** Amended 
Amended 
** Amended 
Amended 
** Amended 
Amended 
** Amended 
Amended 
** Amended 
Amended 
** Amended 
.Amended 
** Amended 
.Amended 
Amended 
** Amended 
/Amended 
** Amended 
/Amended 
** Amended 
** Amended 
** Amended 
/Amended 
** Amended 
Amended 
** Adopted 
** Amended 
** Amended 
Amended 
** Amended 
Amended 
/Amended 
.Amended 



** Amended 
** Amended 
** .Amended 



** Amended 



217 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



FINAL RULES 



.0302 - .0303 

.0403 

.0603 

BOARD OF CPA EXAMINERS 

21 NCAC 8F .0105 

BOARD OF COSMETIC ART EXAMINERS 

21 NCAC 14A .0101 
14G .0003 

.0007 
141 .0103 

.0109 
14L .0101 

BOARD OF DENTAL EXAMINERS 



21 



NCAC 



16A .0001 

.0004 

16B .0101 

.0307 

.0315 

16C .0306 

161 .0004 

16J .0003 



Eff. June 1, 1991 
Amended 
Eff. June 1, 1991 
** Amended 
Eff. June 1, 1991 
** Adopted 
Eff. June 1, 1991 



* Correction 



** Amended 
** Amended 
** Amended 
** Amended 
** Amended 
** Amended 



Amended 
Amended 
Amended 
Amended 
** Amended 
■Amended 
Amended 
** Amended 



BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS 



21 



NCAC 



37 



.0603 
.0606 



Amended 
Amended 



N.C. REAL ESTATE COMMISSION 



21 



NCAC 



58C .0302 
58D.0201 



OFFICE OF STATE PERSONNEI 



Temp. Amended 
Expires 10-02-91 
Temp. Amended 
Expires 10-02-91 



25 



NCAC 



1L .0202 
.0203 



** Amended 
** Amended 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



218 



ARRC OBJECTIONS 



1 he Administrative Rules Review Commission (ARRC) objected to the following rules in accord- 
ance with G.S. 143B-30.2(c). State agencies are required to respond to ARRC as provided in G.S. 
l43B-30.2(d). 



ARRC Objection 3/ 2 1/91 
ARRC Objection 3/21/9/ 
ARRC Objection 3/21/91 



ARRC Objection 

ARRC Objection 
Obj. Removed 
ARRC Objection 
Obj. Removed 
ARRC Objection 
Obj. Removed 



2/25/91 
3/21/91 
2/25/91 
3/21/91 
2/25/91 
3/21/91 
2/25/91 
3/21/91 



ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission 

4 NCAC 3G .0203 - Expiration and Renewal 

4 XCAC 3G .0502 - Annual Report 

4 XCAC 3G .0601 - Revocation or Suspension; Hearings 

Community Assistance 

4 NCAC I9R .0103 - Waivers 

Agency Withdrew Rule 
4 NCAC 19R .0303 - Distribution of Funds 

Agency Revised Rule 
4 NCAC 19R .0304 - Reallocation 

Agency Revised Rule 
4 NCAC 19R .0602 - Reporting 

Agency Revised Rule 

Energy 

4 NCAC I2C .0005 - Forms 

Agency Revised Rule 
4 NCAC 12C .0006 - Scope and Purpose of State Set- A side 

Agency Revised Rule 

I lazardous Waste Management Commission 

4 NCAC 18 .0309 - Final Site 

Agency Returned Rule Unchanged 

EDUCATION 

Elementary' and Secondary Education 

16 NCAC6C .0205 - Teacher Education Program State Review Standards ARRC Objection 3; 21, 91 

Agency Revised Rule Obj. Removed 3/21/91 

16 NCAC6C .0310 - Standard Examinations ARRC Objection 3/21/91 

Agency Revised Rule Obj. Removed 3/21/91 

16 NCAC6H .0010 - Special Education Due Process Procedures ARRC Objection 3/21 91 

Agency Revised Rule Obj. Removed 3:21,91 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health 



ARRC Objection 2/25/91 

Obj. Removed 3,121/91 

ARRC Objection 2/25/91 

Obj. Removed 3/21/91 



ARRC Objection 1/18/91 
No Action 2/25/91 



15 A NCAC 16A .0804 - Financial Eligibility 
No Response from Agency 
Agency Responded 



ARRC Objection 1/18,91 

2/25/91 

No Action 3/21/91 



219 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



ARRC OBJECTIONS 



ISA NCAC 16A .0806 - Billing the HIV Health Services Program 
No Response from Agency 
Agency Responded 

Coastal Management 

15 A NCAC 7 J .0409 - Civil Penalties 

Agency Returned Rule Unchanged 
15A NCAC 7 J .1109 - Permit Fee 

Agency Withdrew Rule 

Environmental Health 



ARRC Objection 1 1 18191 

2/25/91 
No Action 3/21/91 



ARRC Objection 1/18/91 
No Action 2/25/91 

ARRC Objection 1/18/91 

2/25/91 



ISA NCAC 18 A .2515 ■ 


Design Details 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


15A NCAC 18A .2516- 


Pool Profile 


ARRC Objection 


3/ 21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC ISA .2517 ■ 


Diving Equipment 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC 18A .2519- 


Filters 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


15 A NCAC I8A .2523- 


Depth Markings and Safety Ropes 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC ISA .2529- 


User Loading 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC ISA .2534- 


Chemical Storage 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC ISA .2535 - 


Water Quality Standards 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC ISA .2537 - 


Appeals 


ARRC Objection 


3/21/91 


15A NCAC 18A .2614- 


Outdoor Dining 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


ISA NCAC 18 A .2618 - 


Cleaning of Equipment and Utensils 


ARRC Objection 


3/21/91 


ISA NCAC ISA .2711 - 


Toilet Facilities 


ARRC Objection 


3/21/91 


ISA NCAC 18 A .2901 - 


Disbursement of Funds 


ARRC Objection 


3/21/91 


Agency Revised Rule 




Obj. Removed 


3/21/91 


Solid Waste Management 






ISA NCAC 13A .0016 - 


Special Purpose Com Hazardous Waste Facility 


ARRC Objection 


2/25:91 


Agency Responded 




Obj. Removed 


3/21/91 


ISA NCAC J3A .0017 - 


Fee Schedules 


ARRC Objection 


2/25/91 


Agency Responded 




Obj. Removed 


3/21/91 



Wildlife Resources Commission 



ISA NCAC 10H .0807 - Classes of Permits 
Agency Revised Rule 

VVTP Operators Certification Commission 

15 A NCAC SB .0404 - Temporary Certification 
Agency Revised Rule 

HUMAN RESOURCES 

Individual and Family Support 



ARRC Objection 2/25/91 
Obj. Removed 3/21/91 



ARRC Objection 3/21/91 
Obj. Removed 3/21/91 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



220 



ARRC OBJECTIONS 



10 NCAC42B .1201 - Personnel Requirements 

No Response from Agency 

Agency Returned Rule Unchanged 
10 NCAC 42C .2001 - Qualifications of Administrator 

No Response from Agency 

Agency Returned Rule Unchanged 
10 NCAC 42C .2002 - Qualifications of Supervisor-in-Charge 

No Response from Agency 

Agency Returned Rule Unchanged 
10 NCAC 42C .2006 - Qualifications of Activities Coordinator 

No Response from Agency 

Agency Returned Rule Unchanged 
JO NCAC 42C .3301 - Existing Building 

Agency Returned Rule Unchanged 
JO NCAC 42D .1401 - Qualifications of Administrator/Co-Administrator 

Agency Returned Rule Unchanged 

Sendees for the Deaf 



ARRC Objection 

No Action 
ARRC Objection 

No Action 
ARRC Objection 

No Action 
ARRC Objection 

No Action 
ARRC Objection 
No Action 
ARRC Objection 
No Action 



1118191 

2/25/91 

3/21/91 

1/18/91 

2/25/91 

3/21/91 

1/18/91 

2/25/91 

3/21/91 

1/18/91 

2/25/91 

3/21/91 

11/14/90 

12/20/90 

11/14/90 

12/20/90 



10 NCAC 20F .0502 - Definitions 

Agency Revised Rule 
10 NCAC 20F .0506 - Classification 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 



ARRC Objection 3/21/91 

Obj. Removed 3/21/91 

ARRC Objection 3/21/91 

Obj. Removed 3/21/91 



Auctioneer's Commission 

21 NCAC 4B .0602 - Advertising 

CPA Examiners 



ARRC Objection 3/21/91 



21 NCAC8M .0306 - Due Professional Care 
Agency Withdrew Rule 

Cosmetic Art Examiners 

21 NCAC 14.4 .0/0/ - Definitions 

Agency Revised Rule 
2/ NCAC 14G .0003 - Space Requirements 

Agency Revised Rule 
2/ NCAC I4G .0007 - Equipment and Teachers 

Agency Revised Rule 
21 NCAC 141 .0103 - Inspections and Reports of Student Hours 

Agency Revised Rule 
21 NCAC 141 .0109 - Summary of Cosmetic Art Education 

Agency Revised Rule 
21 NCAC 141 .0302 - Library 

Agency Responded 
21 NCAC I4L .0101 - Qualifications - Cosmetologist Teachers 

Agency Revised Rule 
21 NCAC 14L .0210 - Effect on Student-Teacher Ratio 

Agency Responded 

Dental Examiners 



ARRC Objection 2/25/91 
3/21/91 



ARRC Objection 2/25/91 

Obj. Removed 3/21/91 

ARRC Objection 2/25/91 

Obj. Removed 3/21/91 

ARRC Objection 2/25/91 

Obj. Removed 3/21/91 

ARRC Objection 2125/91 

Obj. Removed 3/21/91 

ARRC Objection 2/25/91 

Obj. Removed 3/21/91 

ARRC Objection 2/25/91 

No Action 3/21/91 

ARRC Objection 2/25/91 

Obj. Removed 3/21/91 

ARRC Objection 2/25/91 

No Action 3/21/91 



221 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



ARRC OBJECTIONS 



21 NCAC 16C .0310 
21 NCAC 16D .0101 

Medical Examiners 



Reexamination 
Eligibility Requirements 



ARRC Objection 3/21/91 
ARRC Objection 3/21/91 



ARRC Objection 2/25/91 
So Action 3/21/91 

ARRC Objection 11/14/90 
Obj. Removed 12/20/90 



ARRC Objection 12/20/90 
1/18/91 
2/25/91 
1/18/91 
2/25/91 
1/18/91 
2/25/91 
1/18/91 
2/25/91 



Obj. Removed 
ARRC Objection 
Obj. Removed 
ARRC Objection 
Obj. Removed 
ARRC Objection 
Obj. Removed 



21 NCAC 32B .0309 - Personal Interview 

Agency Responded 
21 NCAC 32M .0007 - Termination ofNP Approval 

Agency Revised Rule 

Nursing, Board of 

21 NCAC 36 .0217 - Revocation, Suspension, or Denial of License 

No Response from Agency 

Agency Revised Rule 
21 NCAC 36 .0504 - Certificate of Registration 

Agency Revised Rule 
21 NCAC 36 .0505 - General and Administrative Provisions 

Agency Revised Rule 
21 NCAC 36 .0507 - Fees 

Agency Revised Rule 

Physical Therapy 

21 NCAC 48C .0102 - Responsibilities 

Agency Returned Rule Unchanged 

Agency Revised Rule 
21 NCAC 48C .0501 - Exemption for Students 

Agency Returned Rule Unchanged 

Agency Revised Rule 

SECRETARY OF STATE 

Securities Division 

18 NCAC 6 .1210 - Securities Exchgs Autod Quot. Sys. Approved/ Admin ARRC Objection 12/20/90 
Agency Responded to Objection No Action 1/18/91 

STATE PERSONNEL 



ARRC Objection 
No Action 
Obj. Removed 
ARRC Objection 
No Action 
Obj. Removed 



9120/90 
10/18/90 
2/25/91 
9/20/90 
10/18/90 
2/25/91 



25 NCAC ID .0509 - Severance Salary Continuation 
Agency's Response Unacceptable 



ARRC Objection 1/18/91 
2/25/91 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



??? 



RULES INVALID A TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the Sorth Carolina Administrative Code. 



10 NCAC 261 .0101 - PURPOSE: SCOPE/NOTICE OF CHANGE IN LEVEL OF CARE 

10 NCAC 261 .0102 - REQUESTS FOR RECONSIDER A TION AND RECIPIENT APPEALS 

10 NCAC 261 .0104 - FORMAL APPEALS 

Thomas R. West, Administrative Law Judee with the Office of Administrative Hearings, declared Rules 
10 NCAC 261 .0101, 10 NCAC 261 .0102 and 10 NCAC 261 .0104 void as applied in Linda Allred, 
Petitioner v. North Carolina Department of Human Resources, Division of Medical Assistance, Re- 
spondent (90 DHR 0940). 

10 NCAC 421V .0003(c) - COUNTY DEPT OF SOCIAL SERVICES RESPONSIBILITIES 
10 NCAC 42 W .0005 - REPORTING CASES OF RAPE AND INCEST 

The North Carolina Court of Appeals, per Judge Robert F. Orr, declared Rules 10 NCAC 42W 
.0003(c) and 10 NCAC 42W .0005 void as applied In Rankin Whittington, Daniel C Hudgins, Dr. Takey 
Crist, Dr. Gwendolyn Boyd and Planned Parenthood of Greater Charlotte. Inc.. Plaintiffs v. The North 
Carolina Department of Human Resources. David Flaherty, in his capacity as Secretary of the North 
Carolina Department of Human Resources, The North Carolina Social Services Commission, and C. 
Barry McCartv. in his capacity as Chairperson of the North Carolina Social Services Commission, De- 
fendants [100 N.C. A P p. 603/398 S.E.2d 40 (1990)]. 

16 NCAC 6D .0105 - USE OF SCHOOL DAY 

The North Carolina Supreme Court, per Associate Justice Henry E. Frye, held invalid Rule 16 NCAC 
6D .0105 as decided in The State of North Carolina; The North Carolina State Board of Education; and 
Bob Etheridge, State Superintendent of Public Instruction, Plaintiffs v. Whittle Communications and The 
Thomasville City Board of Education. Defendant-Counlerclaimants and The Davidson County Board of 
Education. Defendant-lntervenor and Counterclaimant v. The State of North Carolina: The North 
Carolina State Board of Education; and Bob Etheridge. State Superintendent of Public Instruction; and 
Howard S. Haworth; Barbara M. Tapscott; Kenneth R. Harris; Teena Smith Little; W.C Meekins Jr.; 
Mary B. Morgan; Patricia H. Neal; Cary C Owen; Donald D. Pollock; Prezcll R. Robinson; Norma 
B. Turnage; State Treasurer Harlan E. Boy/es; and Lt. Governor James C Gardner; in their official 
capacities as members of The North Carolina State Board of Education, Counterclaim Defendants [328 
N.C. , S.E.2d (1991)]. 

15A NCAC 7H .0308 - SPECIFIC USE STANDARDS 

The North Carolina Court of Appeals, per Judge Sidney S. Eagles Jr., held that it was error for the 
Coastal Resources Commission to fail to follow the required notice and comment procedure prior to 
the adoption of temporary rule 15A NCAC 7H .0308(a)(l)(M), but that the CRC followed proper 
procedures when it adopted the text of the temporary rule as a permanent rule [15A NCAC 7H 

.0308(a)( 1)(M)]. Conservation Council of North Carolina v. Haste [102 N.C. App. , 402 S.E.2d 

447 (1991)]. 



223 6:4 NORTH CAROLINA REGISTER May 15, 1991 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two 
of these, titles and chapters, are mandatory. The major subdivision of the NCA C is the title. 
Each major department in the North Carolina executive branch of government has been as- 
signed a title number. Titles are further broken down into chapters which shall be numerical 
in order. The other two, subchapters and sections are optional subdivisions to be used by 
agencies when appropriate. 

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMENISTRATD/E CODE 



TITLE DEPARTMENT 

1 Administration 

2 Agriculture 

3 Auditor 

4 Economic and Community 

Development 

5 Correction 

6 Council of State 
Cultural Resources 

8 Elections 

9 Governor 

10 Human Resources 

1 1 Insurance 

12 Justice 

13 Labor 

14A Crime Control and Public Safety 

15A Environment, Health, and Natural 
Resources 

16 Public Education 

1 7 Revenue 

18 Secretary of State 
19A Transportation 
20 Treasurer 

*21 Occupational Licensing Boards 

22 Administrative Procedures 

23 Community Colleges 

24 Independent Agencies 

25 State Personnel 

26 Administrative Hearings 



LICENSING BOARDS 


CHAPTER 


Architecture 


2 


Auctioneers 


4 


Barber Examiners 


6 


Certified Public Accountant Examiners 


8 


Chiropractic Examiners 


10 


General Contractors 


12 


Cosmetic Art Examiners 


14 


Dental Examiners 


16 


Electrical Contractors 


is 


Foresters 


20 


Geologists 


21 


Hearing Aid Dealers and Fitters 


22 


Landscape Architects 


26 


Landscape -Contractors 


2N 


Marital & Family Therapy 


31 


Medical Examiners 


32 


Midwifery Joint Committee 


33 


Mortuary Science 


34 


Nursing 


36 


Nursing Home Administrators 


37 


Occupational Therapists 


38 


Opticians 


40 


Optometry 


42 


Osteopathic Examination and 


44 


Registration 




Pharmacy 


46 


Physical Therapy Examiners 


48 


Plumbing, Heating and Fire Sprinkler 


50 


Contractors 




Podiatry Examiners 


52 


Practicing Counselors 


53 


Practicing Psychologists 


54 


Professional Engineers and Land Surve) 


ors 56 


Real Estate Commission 


58 


Refrigeration Examiners 


60 


Sanitarian Examiners 


(-2 


Social Work 


63 


Speech and Language Pathologists and 


64 


Audiologists 




Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



6:4 NORTH CAROLINA REGISTER May 15, 1991 



224 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1991 - March 1992) 



1991 - 1992 

Pages Issue 

1 - 44 1 - April 

44 - 99 2 - April 

100 - 185 3 - May 

186 - 226 4 - May 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

FR - Temporary Rule 



AGRICULTURE 

Plant Industry, 102 PR 

CORRECTION 

Division of Prisons, 35 FR, 87 FR, 209 FR 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Alcoholic Beverage Control Commission, 4 PR 
Community Assistance, 104 PR 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Environmental Management, 197 PR 

Health: Epidemiology, 28 PR 

Health Services, 9 PR 

Marine Fisheries, 122 PR 

Wildlife Resources Commission, 84 PR, 170 PR, 198 PR 

FINAL DECISION LETTERS 

Voting Rights Act, 48 

FINAL RULES 

Fist of Rules Codified, 89 FR, 215 FR 



GOVERNOR/LI. GOVERNOR 

Executive Orders. 1, 45, 100, 186 



225 6:4 NORTH CAROLINA REGISTER May 15, 1991 



CUMULA TIVE INDEX 



HUMAN RESOURCES 

Aging, Division of, 72 PR 

Facility Services, 104 PR 

Medical Assistance, 9 PR, 112 PR, 188 PR 

Mental Health, Developmental Disabilities and Substance Abuse Services, 5 PR, 49 PR 

Social Services, 116 PR 

INSURANCE 

Actuarial Services, 119 PR 
Special Services Division, 84 PR 

JUSTICE 

Private Protective Services, 121 PR 

LICENSING BOARDS 

Architecture, Board of, 30 PR 

Certified Public Accountant Examiners, 201 PR 

Pharmacy, Board of, 201 PR 

Physical Therapy Examiners, Board of, 33 PR 

Practicing Psychologists Examiners, 203 PR 

Real Estate Commission, 171 PR 

PUBLIC EDUCATION 

Elementary and Secondary, 29 PR, 199 PR 

REVENUE 

Property Tax Commission, 210 ER 

SECRETARY OF STATE 

Securities Division, 85 PR 

STATE PERSONNEL 

State Personnel Commission, 172 PR 

TRANSPORTATION 

Division of Motor Vehicles, 213 ER 



6:4 NORTH CAROLINA REGISTER May 15, 1991 226 



NORTH CAROLINA ADMINISTRATIVE CODE 

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